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Excerpts From the Opinion in the West Virginia Case

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In 1979, the West Virginia Supreme Court of Appeals found, in the case then called Pauley v. Kelly (now Pauley v. Bailey), that the state's system of financing public schools violated the state constitution's guarantee of a "thorough and efficient" education.

The justices broadly defined a thorough and efficient school system as one that "develops, as best the state of education expertise allows, the minds, bodies, and social morality of its charges to prepare them for useful and happy occupations, recreation, and citizenship, and does so economically."

In sending the case back to the Kanawha County circuit court for trial, the supreme court ordered the new judge to determine in detail "what a thorough and efficient education is and does," and to measure West Virginia's existing school system against what it should be.

Special Judge Arthur M. Recht, after a trial lasting more than 40 days, found that the quality of a school district's educational offerings correlates directly with the district's property wealth, and that neither state financial aid nor state education policies compensate for the disparities. In a 244-page opinion, he set forth educational standards for the state's schools, ordered that the state legislature and tax department devise a more equitable system of financing education, and appointed a monitor to oversee the changes.

The bulk of Judge Recht's order is devoted to 73 highly detailed findings on what constitutes a "thorough and efficient education"--ranging from class size in early childhood education to the proper size of school cafeterias and playgrounds to thevailability of foreign-language classes in elementary schools.

In his epilogue, Judge Recht acknowledges the unusual breadth of the order and justifies it by maintaining that state officials have failed to carry out their constitutional duty to provide an equitable, thorough, and efficient system of education.

Excerpts from his order follow.

Relationship Between Educational Expenditures, Educational Offerings,and Student Achievement

This opinion could not be complete without commenting and finding whether, even if all the finances required for a thorough and efficient system of education could be made available, the infusion of these resources would produce a marked increase in scholastic achievement.

Many days of testimony were devoted to this rather fundamental question, with reams of arcane tables, charts, and graphs considered and introduced.

While the methodology of the various expert witnesses varied, this court determines that the following findings are justified by the totality of all the evidence, distilled to its more basic terms:

The inadequacies and inequalities in educational programs and services in West Virginia are the product of the school-finance system. In West Virginia, the counties with the greatest local property wealth are the counties with the greatest ability to finance education, since state and local revenues for education are directly related to property wealth. These property-wealthy counties also have a population more able to support education. Per-capita income in West Virginia is directly related to property wealth and educational expenditures. ...

The difference in property wealth among counties in West Virginia translates into large differences in state and local revenues per net enrollment. In 1979-80, state and local revenues per pupil ranged from a high of $2,239 in Grant County to $1,340 in Logan County, a difference of $999 per pupil. Even when the wealthiest and poorest districts are disregarded, the variation is from $1,809 in Kanawha County at the 95th percentile to $1,357 in Nicholas County at the fifth percentile. The state average revenue per pupil in 1979-80 was $1,580.

There was a similar difference in current expenditures per pupil in 1979-80. The range was from $2,163 per pupil in Pleasants County to $1,358 per pupil in Roane County ...

In West Virginia, there is a strong relationship between a county's property wealth and its available state and local revenues for elementary and secondary education. Counties with high property wealth generally have greater revenues for education, while low-wealth districts generally have less state and local revenues. ...

The wealthiest fifth of counties raised over two times the local revenues raised by the poorest fifth of counties in 1979-80. In contrast, the poorest fifth of counties received only slightly more state aid than the wealthiest counties. ...

The inadequacies and inequalities in educational offerings referred to in the findings herein are directly related to differences in the level of educational expenditures in counties in West Virginia. Adequate resources are essential ingredients to providing high-quality educational offerings. It is impossible to offer high-quality programs without sufficient staff, facilities, and materials and equipment, and these can only be provided if adequate resources are available.

Students who do not have access to high-quality programs in all subject areas are at a disadvantage when seeking employment or competing in higher education.

The comprehensive subject-area studies conducted at the direction of the state department of education recognize the relationship between resources and effective educational programs. A strong, positive correlation exists between the amount of expenditures in West Virginia schools and the achievement or educational-success rate of the students in West Virginia schools.

There is a strong, positive relationship between educational expenditures and results on stan-dardized achievement tests in West Virginia. The West Virginia Department of Education has operated a state-county testing program since 1962. Students in grades 3, 6, 9, and 11 are administered the Comprehensive Test of Basic Skills, Form S. This test tests six basic-skills areas--reading, language, mathematics, reference skills, science, and social studies--using 10 separately timed tests.

The clear weight of evidence demonstrates the direct relationships between educational expenditures and test scores.

Counties with the highest level of state and local revenues for education have the highest test scores, while counties with the lowest level of resources have the lowest scores.

Although there is a direct, positive relationship between educational expenditures and test scores, test scores can never be used as a sole, or even major, measure of educational quality or the equality of educational resources and opportunities in West Virginia. The West Virginia Department of Education's Interpretation and Use Handbook states that the tests are "not meant to measure total achievement in any school or grade or in any discipline within a grade" and "must not be used as a basis for total evaluation of instruction." Further, the tests test only a limited number of skills. Many areas such as art, music, physical education, foreign language, and vocational education, all essential areas of the curriculum, are not tested. Counties that choose to devote their resources to the skills tested will have higher scores than counties that emphasize other elements of the curriculum. However, there is no way of knowing a county's emphasis from the scores alone. Moreover, different students start at different levels, and, no matter what the level, resource input produces a substantial result.

Conclusions of Law

Thorough and efficient educational standards are standards that clearly define the specific resources, including staff, instructional materials and supplies, [and] equipment and facilities, necessary to provide high-quality educational offerings for all essential educational programs and services.

As recognized by the West Virginia Supreme Court of Appeals in Pauley v. Kelly, there are eight general elements of a thorough and efficient system of education:

(a) Literacy,

(b) The ability to add, subtract, multiply, and divide numbers,

(c) Knowledge of government to the extent the child will be equipped as a citizen to make informed choices among persons and issues that affect his own governance,

(d) Self-knowledge and knowledge of his or her total environment to allow the child to intelligently choose life work--to know his or her options,

(e) Work-training and advanced academic training as the child may intelligently choose,

(f) Recreational pursuits,

(g) Interests in all creative arts such as music, theatre, literature, and the visual arts, and,

(h) Social ethics, both behavioral and abstract, to facilitate compatibility with others in this society.

The state has a legal duty to develop general elements of a thorough and efficient education in all studies through the provision of high-quality educational programs in the following subject areas: art, early childhood education, foreign languages, health education, home economics, industrial arts, language arts, mathematics, media, music, physical education, science, social studies, vocational education, and extracurricular education. ...

The state has a duty to develop the legally recognized elements of a thorough and efficient system of education in every child to his or her capacity, by providing high-quality programs to children of all abilities. This duty to provide the high-quality substantive educational offerings pursuant to the constitutional mandate is the duty to provide the resources in terms of the following components: the requisite curriculum offerings, personnel, facilities, and materials and equipment to assure the development of every child. Special education, remedial, and advanced programs are essential to a thorough and efficient system. The higher-cost programs such as special education, remedial and enrichment education, vocational education, early childhood education, and secondary education must be reflected in the funding system.

A high-quality program consistent with ... the West Virginia Constitution requires that all direct and indirect costs of the educational programs must be fully included in the state financing structure, i.e., curriculum costs, instructional, support, and administrative staff salaries, benefits, supplies and equipment costs, and facility costs.

Further, in order to develop thorough and efficient programs, the state has a duty to provide that the counties have the ability to:

(a) attract, employ, and retain a high-quality staff of sufficient size to perform the educational tasks, including sufficient administrative staff;

(b) provide high-quality, well-maintained educational facilities; and

(c) provide high-quality textbooks, workbooks, and instructional supplies and equipment.

To support the educational program, the state has a duty to provide that the counties are able to provide high-quality support services in the areas of counseling and guidance, health, food preparation, and transportation. ...

Equal protection requires equality in substantive educational offerings and results. The state has a legal duty to provide equal educational opportunities by allocating resources to counties according to criteria substantially related to educational needs and costs. ...

The state also has a duty to eliminate the effects of unequal costs among counties of providing educa-tional services due to such factors as county isolation, sparsity, terrain and road conditions. ...

The current system of school finance prevents Lincoln County and many other poor counties from providing educational programs and services necessary to meet the standards of a thorough and efficient system of education. Due to inadequate resources, not a single program in Lincoln County meets the thorough and efficient requirements. All programs are hampered by insufficient staff, obsolete, inappropriate and overcrowded facilities, and a serious lack of necessary instructional texts, materials, and equipment.


During the early days of this trial, I listened to and observed all of the many witnesses who testified, and a single recurring thought kept haunting me. That thought arose out of reading Justice Neely's excellent dissenting opinion in Pauley, et al v. Kelly, et al. Even though the educational system in West Virginia is in an outrageous condition, what is this case doing in the courts? Initially I thought that the resolution of all the myriad of problems associated with the public schools in West Virginia could only be solved by "prying more money from the legislature" through the cumbersome legislative/political process suggested by Justice [Richard] Neely.

Slowly, however, as more witnesses testified and more exhibits [were] considered, that original thought dissipated and gave way to the realization: If not the judicial branch of government, then who?

The other branches of government have had over these many years not only the duty, but obviously the opportunity, to have made the standards set forth herein a reality. Indeed, there should have been no reason to have instituted this suit in the first instance.

However, as occasionally occurs, despite the rather precise constitutional mandates, other branches of government need the judicial direction to assist them in discharging their oath. This is the genius [of] the concepts of separation of powers and judicial review.

What is most intriguing is that, despite the strong language in Pauley, et al v. Kelly, et al that "our basic law makes education's funding second in priority only to payment of the state debt, and ahead of every other state function," and in State ex rel. Board of Education v. Rockefeller, "in the final analysis ... our Constitution ... gives a constitutionally preferred status to public education in the state,'' the legislature still failed to adopt legislation which could have dispensed with further consideration of this case.

Instead Senate Bill 15 [a 1981 measure modifying the state-aid formula], although a rather noble effort, failed to address the fundamental deficiencies of the system--the absence of standards of a high-quality system of education, the absence of dispensing with the reliance on excess levies, and a plan for facility construction.

At the conclusion of this trial, after the last witness left the courtroom, the only thing that then haunted me was a rather apt, albeit often used, thought of Rabbi Hillel: "If not now, when?" The "when" must be now, and the "who" is the judicial branch, bringing together the energy and talents of all interested West Virginians for the benefit of our most precious natural resource--our children.

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