Curriculum, Taxes Ordered Reformed In West Virginia

By Mark Ward — May 26, 1982 8 min read
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A West Virginia trial judge has ruled that his state’s system of financing public schools is unconstitutional and has ordered the state to provide funds to raise all schools up to specific educational standards.

In a comprehensive, 244-page opinion, Judge Arthur M. Recht of Wheeling held that not one of West Virginia’s 55 county school systems meets the the state’s constitutional standards for a “thorough and efficient” education, which he defined in minute detail.

The decision has already touched off outrage and flurried activity among West Virginia politicians; it is also likely to influence the widening national debate on the nature of, and fiscal and legal responsibility for, quality in U.S. public schools.

Excerpts from the judge’s opinion appear on page 10.

The judge’s far-reaching decision comes almost 10 years after a Lincoln County mother of five brought suit against the state, charging that overcrowded and dilapidated conditions in her children’s schools were the direct result of a school-finance system that relied too heavily on local-property taxes.

Judge Recht, a 43-year-old former trial lawyer with only a few months’ experience on the bench, was appointed by the state Supreme Court of Appeals in April 1981 to hear the case and to define educational quality after the high court reversed another trial judge’s dismissal and remanded it to circuit court.

The 13th in a checkered series of school-finance cases to be decided by trial courts in the United States, West Virginia’s so-called “Lincoln County case” sets perhaps the broadest precedent of any so far.

Earlier cases in such states as New Jersey, California, Colorado, and Arkansas, focused primarily on disparities in funding among school districts, leaving it up to state education authorities to determine the ingredients of school programs to be financed under revised funding schemes.

In the West Virginia case, Pauley v. Bailey, Judge Recht went far beyond the question of school funding and, in painstaking detail, outlined standards for curriculum, personnel, materials and equipment, and facilities in 16 academic areas as well as in guidance, health services, and transportation.

“This is a different decision than in other states; it’s far more prescriptive,” said Margaret E. Goertz, a leading authority on school finance and a research scientist with the Education Policy Research Institute, a division of the Educational Testing Service in Princeton, N.J.

“I can see it having an impact in states like New Jersey, where there is new litigation. Before, people used to look to New Jersey for guidance on how to approach the ‘thorough and efficient’ standards. Now, I think they’re going to be looking to West Virginia,” added Ms. Goertz, who has closely followed finance reform in New Jersey and elsewhere.

“I can’t think of any other case so far that has gone this far,” she said. “It really is a precedent.”

Requirements Established

Judge Recht set out requirements--from kindergarten through high school--for a high-quality education, down to the number of square feet of classroom space needed per student and minutes of instruction per week.

In general, he said, the state should raise its teaching salaries and benefits to a competitive level and should provide incentives in the form of credits or scholarships for teachers who accept positions in isolated areas of the state. Class size, he directed, should not exceed 20 students from kindergarten to second grade and 25 students in grades 3 through 12.

The judge noted that while some counties come closer than others to meeting his standards, not one meets them precisely. But, rather than lower standards in the better school systems to some median, he said, the state must raise the standards of all counties to a uniformly high level.

Judge Recht also held that the state must develop a method of funding schools that does not force counties to rely on local bond or “excess” levies, which are subject to local referendum, to meet educational standards. He said that the state should enact a state-funded school-building program and provide funds for free textbooks and materials to all schools.

System Criticized

The judge also criticized the state’s property-appraisal system, which, he said, is largely responsible for disparities in education, since it provides the basis for county-property taxes, the principal source of income for schools.

The failure of the state tax commission to enforce uniform assessments across the state, Judge Recht said, has resulted in unequal and deficient taxation of all classes of property in all counties.

Judge Recht indicated that he would appoint a special commissioner who will have 120 days to develop a master plan setting forth how the state intends to put his findings into effect.

Reviewing county school systems, Judge Recht cited several instances of “woefully inadequate” conditions.

“Despite tragic health problems among many students ... and lack of health services in the county, the Lincoln County school system has no health-service program,” he wrote in his decision.

The school system, he noted, did not employ a nurse until 1981, and now that position is being eliminated because of a lack of funds.

Almost half of the county’s special-education personnel are not properly certified, and teachers are forced to work in damp, windowless rooms or in rundown trailers separated from the main school building.

In Tucker County, the judge said, school officials were forced to photocopy language-arts textbooks because of a lack of funds. Science, mathematics, art, music, and foreign-language instruction is inadequate in most counties, he found.

During the 10-week trial, which extended through the summer and fall of last year, lawyers for the state attempted to steer Judge Recht away from making such broad findings. Education, they argued, is more an art than a science and does not lend itself to definition by expert testimony.

In fact, the state offered no direct testimony to rebut extensive testimony by the plaintiffs’ expert witnesses as to specific educational standards.

Instead, lawyers for the state argued that broad definitions recently enacted by the state board of education provided general assistance while giving counties some leeway in defining their own curricula.

Judge Recht, in his findings, rejected that argument. The state constitution, he said, clearly places responsibility for developing specific standards with the state board of education. Those state education standards that do exist, he said, are only minimal and not sufficiently specific.

Just as it requires the state to set high standards for all schools, Judge Recht said, the constitution also requires the state to provide funds to ensure that high educational standards are met. He said the state should revamp its funding formula so that it better serves the greater needs of rural counties.

Officials Angered

The judge’s findings have raised cries of outrage from state officials and legislators, who insist that his plan is utopian and excessively costly.

State Tax Commissioner Herschel Rose 3d predicted that reassessments ordered by Judge Recht would result in tax increases of 500-to-600 percent for some property owners.

Attorney General Chauncey Browning last Thursday recommended that the legislature be called into special session to consider a constitutional amendment that would nullify Judge Recht’s decision. And one legislator warned of a tax revolt if the decision stands.

Through a spokesman, Roy Truby, state superintendent of schools, termed the decision “far-reaching, not only in finance, but in defining what it means to be ‘thorough and efficient.”’

“The judge had very high standards, and they were very specific, to the point that Dr. Truby said he didn’t know of a district in the United States that could meet them,” said the superintendent’s spokesman, Elnora B. Pepper.

The state board of education was to hold a special meeting late last week to discuss what legal course to take, Ms. Pepper added.

Gov. John D. Rockefeller 4th, in a prepared statement, said that he was “very concerned” about Judge Recht’s decision.

The Governor said, “Despite [my] continuing commitment to improving the quality of education in West Virginia, the impact of Judge Recht’s decision would apparently require enormous increases in taxes for all West Virginians.” He added that he would make detailed recommendations after scrutinizing the opinion more closely.

In a state where voters last fall turned down a $750-million road bond to improve a deteriorating highway system and legislators this spring refused pay hikes for teachers and other public employees to avoid raising taxes, the changes Judge Recht has recommended are generating substantial debate.

Critics are charging that Judge Recht’s decision could cost the state as much as $400 million, but no one has begun to calculate the actual expense.

The defendants in the case, who include the state treasurer, the state board and superintendent, and the tax commissioner, are expected to appeal. They are expected to argue that Judge Recht overstepped his mandate from the supreme court.

‘Outrageous Condition’

In an epilogue to his order, Judge Recht noted that he began the trial of this case with reservations about his role. “Even though the educational system in West Virginia is in outrageous condition, what is this case doing in the courts?” he asked himself.

As the trial unfolded, he said, it dawned on him that “the other branches of government have over these many years not only the duty but obviously the opportunity to have made standards set forth herein a reality.”

Judge Recht said he decided that “the other branches of government need the judicial direction to assist them in discharging their oath.”

At the end of the trial, he said he was haunted by two questions: “If not the courts, then who? If not now, when?”

Judge Recht said he concluded that, “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.”

A version of this article appeared in the May 26, 1982 edition of Education Week as Curriculum, Taxes Ordered Reformed In West Virginia


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