State Ex Rel. Lambert v. West Virginia State Board of Education

447 S.E.2d 901, 191 W. Va. 700, 1994 W. Va. LEXIS 142
CourtWest Virginia Supreme Court
DecidedJuly 20, 1994
Docket22225
StatusPublished
Cited by6 cases

This text of 447 S.E.2d 901 (State Ex Rel. Lambert v. West Virginia State Board of Education) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Lambert v. West Virginia State Board of Education, 447 S.E.2d 901, 191 W. Va. 700, 1994 W. Va. LEXIS 142 (W. Va. 1994).

Opinions

WORKMAN, Justice:

In this original proceeding, the Petitioners, Diana Lambert and her parents, Kathleen and Hobert Lambert, seek a writ of mandamus against the Respondents, the West Virginia State Board of Education (hereinafter referred to as the Board) and the West Virginia Secondary School Activities Commission (hereinafter referred to as the SSAC), 1) to compel the Board to exercise the general supervisory authority it has pursuant to Article XII, § 2 of the West Virginia Constitu[702]*702tion1 over extracurricular athletic and band activities, and to declare West Virginia Code § 18-2-25 (1994) unconstitutional in that the statute attempts to divest or transfer the Board’s constitutional general supervisory authority to the county boards of education and the SSAC; 2) to order the Lincoln County Board of Education to provide Diana Lambert, a deaf student at Guyan Valley High School in Lincoln County, West Virginia, with a signer so that she may participate in the extracurricular activity of basketball during the 1994-95 school year; and 3) to order that girls be permitted to schedule their extracurricular basketball activities within the traditional normal winter basketball season in which boys’ basketball is played and further order that the girls be afforded equal access with the boys to appropriate facilities in the public schools for basketball practice and games. Based upon the parties’ briefs and arguments, the record and all other matters submitted before this Court,2 we grant the writ sought by the Petitioners with regard to the signer and the girls’ basketball season; however, we deny the writ as it relates to the constitutionality of West Virginia Code § 18-2-25. Because the Petitioners raise three separate and distinct issues in their petition, we address each issue separately.

REQUEST FOR SIGNER

Diana Lambert is an eleventh-grade student at Guyan Valley High School in Branch-land, Lincoln County, West Virginia. She has been deaf since birth and has a signer for her basic courses, but is not provided a signer for her vocational classes3 or her extracurricular activities.

Ms. Lambert has participated in school athletics since sixth grade, and played for the Guyan Valley High School’s girls’ basketball team during her freshman and sophomore years without a signer. Ms. Lambert’s coach, Jim Nelson, stated in an affidavit, dated May, 31, 1994, that he knew of her disability prior to when she started high school and he took several steps in order to meet her special needs, including obtaining assistance from a student speech pathologist so that he would know how to effectively communicate with her. Ms. Lambert’s father also frequently attended practices and on occasion would interpret for his daughter.

In October 1993, during her junior year, Mr. Lambert suggested to Coach Nelson that a signer might be of assistance to his daughter because she was having trouble understanding the coach’s directions. During that same month, Coach Nelson spoke with Mr. Doug Smith, Director of Special Education for Lincoln County, about the possibility of a signer for Ms. Lambert, and informed Mr. Smith that Mr. and Mrs. Lambert were going to make a request for a signer for their daughter. On October 19, 1993, Ms. Lambert’s principal, Paul “Skip” Winters, received a request from Mr. Lambert for a signer. Mr. Winters referred Mr. Lambert to Mr. Smith. Neither Ms. Lambert nor her parents ever contacted Mr. Smith. Ms. Lambert was never provided with a signer. She was dismissed from the basketball team by Coach Nelson just prior to post-season tournament play at the end of the season.4

[703]*703In December 1993, according to Petitioners’ brief, the Petitioners’ counsel stated that he approached Mr. Smith about the Petitioners’ request for a signer, and was informed that Ms. Lambert would not be afforded a signer. By letter dated March 24, 1994, the Petitioners’ counsel inquired of Dr. Henry R. Marockie, State Superintendent of Schools, as to why Ms. Lambert had not been afforded a signer. Dr. Marockie first responded to the Petitioners’ counsel’s inquiry by letter dated April 1, 1994, that “Diana Lambert does appear to be entitled to a signer or some assistance from the Lincoln County Board of Education for ... extracurricular courses[,]” Dr. Marockie also stated that “her [Ms. Lambert’s] claim is outside my jurisdietion[,]” and that the SSAC should be contacted for a remedy. However, by letter dated April 6, 1994, from Victor A. Barone, Director of Legal Services for the West Virginia Department of Education, to Ms. Jan Pannett, Assistant Secretary of the SSAC, Mr. Barone indicated that he had advised the Petitioners’ counsel that he was not sure that the Petitioners’ claim was outside the Board’s jurisdiction and that he was requesting that the Lincoln County Superintendent look into the matter.

The Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 to 1485 (1989 and Supp.1994) (hereinafter referred to as the “IDEA”), requires certain types of support services and accommodations for handicapped students and children with special needs, and also charges state educational agencies with the full responsibility for implementing regulations for handicapped students. See 20 U.S.C. § 1412(6); see generally Zobrest v. Catalina Foothills Sch. Dist., - U.S. -, -, 113 S.Ct. 2462, 2469, 125 L.Ed.2d 1, 14 (1993) (stating that “[t]he IDEA creates a neutral government program dispensing aid not to schools but to individual handicapped children.”). The IDEA, implemented by the code of federal regulations, specifically provides that “[e]ach public agency 5 shall take steps to provide nonacademic and extracurricular services and activities in such manner as is necessary to afford children with disabilities6 an equal opportunity for participation in those services and activities.” 34 C.F.R. § 300.306(a) (1993) (footnotes added). Additionally, the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 to 797b (1985 and Supp.1994), as implemented by 34 C.F.R. § 104.37 (1993), provides that

(a) General. (1) A recipient7 to which this subpart applies shall provide nonacademic and extracurricular services and activities in such manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities.
(2) Nonacademic and extracurricular services and activities may include ... physical recreational athletics....
(c) Physical education and athletics. (1) In providing physical education courses and athletics and similar programs and activities to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates or sponsors interscholastic, club, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities.

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Related

Jones v. West Virginia State Board of Education
622 S.E.2d 289 (West Virginia Supreme Court, 2005)
Baisden v. West Virginia Secondary Schools Activities Commission
568 S.E.2d 32 (West Virginia Supreme Court, 2002)
Payne v. Gundy
468 S.E.2d 335 (West Virginia Supreme Court, 1996)
State Ex Rel. Lambert v. West Virginia State Board of Education
447 S.E.2d 901 (West Virginia Supreme Court, 1994)

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Bluebook (online)
447 S.E.2d 901, 191 W. Va. 700, 1994 W. Va. LEXIS 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-lambert-v-west-virginia-state-board-of-education-wva-1994.