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Has West Virginia fully complied?

by Danny Forinash

STAFF WRITER

Eighteen years ago, Ohio County Circuit Judge Arthur Recht issued a historic decision and recommendation that called for sweeping changes in the West Virginia school system that involved equal and adequate funding for all the state's schools.

Now, 18 years later, Recht is looking at the system again to see if changes have been made, and the decision remains a hot topic of debate in West Virginia education.

The decision by Recht mandated a "thorough and efficient education system of free schools" with equalized funding for education statewide. Since this decision, it is still unclear whether it has become a reality.

The story of the case began in 1975, when a lawsuit was filed by several Lincoln County parents. The suit claimed the state's education system was unconstitutional because property-poor counties were not able to "provide adequate resources for a thorough and efficient education for children." This action was dismissed by the state Supreme Court.

But in 1979, the Supreme Court overturned that dismissal and ordered the case be tried.

Enter Judge Recht.

After being elected to circuit court in 1981, Recht was picked to oversee the case, titled Pauley v. Bailey. No judge in Kanawha County, where the suit was filed, wanted the case.

After a lengthy trial, Recht issued his 244-page opinion in which he called state schools "woefully inadequate" and said that a property tax method for appropriating money to county schools was unconstitutional. He said that it was "inputs" like materials, personnel, facilities and curriculum plans, rather than "outputs" like student achievement, that determined thorough and quality education.

Recht originally planned to appoint a commissioner to oversee the implementation of his decision, but he instead allowed the State Board of Education to develop a "Master Plan" for implementation.

The plan the board came up with was approved by Recht in 1983 as a blueprint for legislative action. The Supreme Court said that this plan should be "implemented until changed."

Two attempts to enact a statewide excess levy to equalize school funding have been rejected by state voters.

"I don't consider a statewide levy is politically realistic," Gov. Cecil Underwood said Thursday, referring to the two electoral defeats. "It would penalize areas that pass local levies by shifting money from them to counties that are either unwilling or unable to pass levies of their own."

Underwood said the Governor's Commission on Tax Fairness has recommended that property taxes be eliminated as the basis of education funding and be replaced by a per-student funding formula.

According to Basil Legg, council for the state superintendent from 1989 to 1993 and council for the Lincoln County School Board from 1996 to 1997, the decision was never really applied fully because Recht said the plan should be implemented as soon as it was practical. This didn't allow for a clear schedule. Legg said that things have changed since 1982 and that more emphasis is now being put on the "outputs" instead of "inputs."

The case was left dormant until 1995 when counsel for the plaintiffs reopened the case and asked for an appointment of a commissioner to oversee the adoption of the Master Plan. The plaintiffs also asked for a requirement that the State Board determine resources needed to adequately educate students.

The case was assigned to Cabell County Circuit Judge Dan Robinson, and according to Legg, nothing much happened during his time with the case. Robinson did approve the plaintiffs' request that both houses of the Legislature be added as defendants, and ruled that the state aid to education formula provisions remained unconstitutional. But he delayed any action until the 1998 session of Legislature finished.

According to information from Kim Nuzum-Lawrence of the West Virginia Department of Education, during the delay in 1997, Gov. Underwood appointed a Commission on Educational Quality and Equity to help resolve the issues in the case and to remove the courts from the "business of education." Many of the commission's recommendations were endorsed by Underwood and the State Board in February 1998, and were codified as Bill 4306 during the year's legislative session.

After the session, Judge Robinson granted a motion by the West Virginia Education Association, a teacher's organization, to become a plaintiff. He also heard testimony from former State Superintendent Dr. Henry Marockie. In Marockie's judgment, the provisions of 4306 were adequate for determining additional resources needed to provide an efficient education.

Robinson voluntarily bowed out of the case in 1999. Reenter Recht, who had been at work dealing with issues like prison conditions and concealed weapons on the circuit and supreme courts since his landmark decision in 1982.

In 1999, the Supreme Court again appointed Recht to the case.

Hearings, conferences and deliberations have continued since in the case, which is now called Tomblin v. Gainer. In December of 1999, plaintiffs presented four days of evidence. In April, a trial date was postponed by Recht to see if a settlement would be possible.

The four major issues of resource evaluations, formulas, excess levies and the Lincoln County school system remain on the table, and if no settlement is reached, the trial will resume on July 31.

According to Dan Hedges, the attorney who has represented the plaintiffs for the school children, about 50 percent of Recht's original decision has come into being. He would, of course, like to see 100 percent implemented.

"The ultimate goal is the best educational opportunities for the children," says Hedges. "For now, we have to take care of inefficiencies and decide on the best use of moneys ... It's a long process."

Staff writer Shawn Gainer contributed to this article.

Staff writer Danny Forinash can be reached at 626-1446.

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