IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2022 Term

_____________________ No. 22

- 0261

_____________________ STATE OF WEST VIRGINIA EX REL. WEST VIRGINIA SECONDARY SCHOOL ACTIVITIES COMMISSION, Petitioner,

v. THE HONORABLE JASON A. CUOMO, JUDGE OF THE CIRCUIT COURT OF OHIO COUNTY, AND HEATHER B., LEGAL GUARDIAN OF A.B. , Respondent s
.

___________________________________________________________ Petition for a Writ of Prohibition
WRIT GRANTED

_________________________________________________________
Submitted: September 28, 2022 Filed: November 1 , 2022 Stephen F. Gandee, Esq. Robinson & McElwee PL LC Clarksburg, West Virginia Counsel for Petitioner David L. Delk, Jr., Esq. Grove , Holmstrand & Delk PLLC Wheeling, West Virginia Counsel for Respondent Heather B.

CHIEF JUSTICE HUTCHISON de livered the Opinion of the Court.
JUSTICE WOOTON , deeming himself disqualified, did not participate in the decision of this case.
JUDGE COURRIER sitting by temporary assignment. 

### FILED November 1, 2022 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIAi SYLLABUS OF THE COUR T
1. “ In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: ( 1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s or der is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important pro blems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear th at the third factor, the existence of clear error as a matter of law, should be given substantial weight. ” Sy llabus Point 4, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996).

2. “ [T]his Court has a responsibility sua sponte to examine the basis of its own jurisdiction.” Sy l l abus Point 1, in part, James M.B. v. Carolyn M ., 193 W. Va. 289, 456 S.E.2d 16 (1995).ii 3. “ Three factors to be considered in deciding whether to address techn ically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questi ons of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided. ” Syllabus Point 1 , Israel by Israel v. West Virginia Secondary School [] Activities Commission , 182 W. Va. 454, 388 S.E.2d 480 (1989 ).

4. “ As a general rule courts should not interfere with the internal affairs of school activities commissions or associations.” Syl labus Point 2, State ex rel. West Virginia Secondary Sch ool Activities Commission v. Oakley , 152 W.Va. 533, 164 S.E.2d 775 (1968).

5. “ Decisions properly within the purview of the leg islative grant of authority to the West Virginia Secondary Schools Activities Commission under West Virginia Code § 18

– 2

– 25 (2008), such as the application of WVSSAC Rules and the review of calls or rulings made by game officials, are not subject to judici al review. ” Syllabus Point 3, State ex rel. W est Virginia Secondary Sch ool [] Activit [ies] Comm ission v. Webster , 228 W. Va. 75, 717 S.E.2d 859 (2011).iii 6. “The concept of equal protection of the laws is inherent in article three, section ten of the West Virginia Constitution, and the scope and application of this protection is coextensive or broader than that of the fourteenth amendment to the United States Constitution.” Syl labus Point 3, Robertson v. Goldman , 179 W. Va. 453, 369 S.E.2d 888 (1988)

.

7

. T he West Virginia Second ary School Activities Commission’s Residence

- Transfer Rule, W est V irginia C ode of State Rules § 127

- 2

- 7.2.a (2021) , is neither arbitrary and capricious nor a violation of equal protection

.1 HUTCHISON, Chief Justice:
On March 4, 2022, the Circuit Court of Ohio County entered a preliminary injunction against the West Virginia Secondary School Activities Commission (“the WVSSAC”) in favor of Heather B

. as legal guardian of A.B. 1 T he circuit co urt concluded the WVSSAC applied the WVSSAC ’s W aiver R ule, W. Va. C.S.R. § 127

- 2

- 2 (2021), in an arbitrary and capricious manner. It further concluded the WVSSAC’s Residence

Transfer Rule, W. Va. C.S.R. § 127

- 2

- 7.2.a (2021), was facially unconstitutional

.

The WVSSAC now seeks a writ of prohibition prohibit ing enforcement of the preliminary injunction. We grant the writ for two reasons. First, w e conclude that the circuit court completely lacked jurisdiction to review A.B.’s as

- applied challenge to the
WVSSAC ’s W aiver Rule. Second, we conclude that while the circuit court ha d jurisdiction
to determine whether t he Residence

- Transfer Rule i s facially u nconstitutional , t he circuit
court clearly erred in finding the Residence

- Transfer Rule to be facially unconstitutional

. For these reasons, w e grant the WVSSAC a writ of prohibition and dissolve the circuit
court’ s March 4, 2022, preliminary injunction

.

I. Facts and Procedural Background

1 Because A.B. is a juvenile, we use initials to identify her and her mother. See W . Va. R. App. Proc. 40( e )(1).2 A.B. attended John Marshall High School as a tenth grade r for school year 2020

- 2021. Before the next school year, she decided to transfer to Wheeling Central Catholic High School, located in Ohio County and a ten

- minute drive from her home in Benwood, Marshall County

. According to Heather , A.B . transfer r ed to Wheeling Central Catholic because A.B. was seeking smaller class sizes, a more personal environment, and wanted to attend a school that offered religion classes and which would foster A.B.’s moral

c ode and religious beliefs. She enrolled at Wheeling Central Catholic on August 25, 2021.

A.B. , who had previously played softball and basketball on recreation and travel teams, wanted to try out for sports at Wheeling Central Catholic , specifically softball and basketball

. Heather claimed A.B. ’s participation in sports provided an outlet for A.B.’s introversion and anxiety. A.B. learned she might not be eligible to play sports at Wheeling Central Catholic because of the WVSSAC’s Residence

- Transfer Rule, which provides, in pertinent part: If a student transfers during the academic year from one secondary school to another secondary school, the student shall be ineligible for 365 days from date of enrollment, absent a bona fide change of residence. Students who are ineligible under this rule may practice during the period of ineligibility, given they meet all other factors of eligibility outlined in Policy 2436.10, § 3. Eligibility. W. Va. C.S.R. § 127

- 2

- 7 .2.a (2021)

. 2 The WVSSAC R ules empower the WVSSAC Board of Directors to waive a WVSSAC rule when “it determines the rule fails to accomplish the

2 A.B. does not contend there was a bona fide change of residence.3 purpose for which it is intended or when the rule causes extreme and undue hardship upon the student.” Id . § 127

- 2

- 2.1 (2021)

.

Heather e - mail ed WVSSAC Executive Director Bernard Dolan seeking a waiver of the R esidence

- Transfer Rule for A.B. Mr. Dolan responded that the Residence

Transfer Rule precluded A.B. from playing sports at Wheeling Central Catholic for one
year without a waiver

. 3 Heather then asked the WVSSAC Board of Directors for a waiver , which t he Board of Directors denied because A.B. “had not demonstrated that an extreme and undue hardship was present and there was no allegation that the rule fail [ed] to accomplish the purpose for which it is intended.” Heather appealed to the WVSSAC Review Board , which, b y a 4

- 2 vote , affirmed the Board of Directors’ d enial . The Review Board found that A.B. felt she would thrive in a smaller school and this had occurr ed since A.B.’s grades at Wheeling Central Catholic were generally excellent. The Board of Review explained that A.B. had shown no hardship . It finally found that “the purpose of the 365 day ineligibility is to assist the student in ‘ settling in ’ to a new academic environment and experience and to help establish solid academic performance. That is precisely what the student and her family sought in a transfer to a smaller school.”

3 Mr. Dolan’s letter merely confirmed Wheeling Central Catholic ’s determination that the Residence

- Transfer Rule prohibit ed A.B. from playing sports at Wheeling Central Catholic for one year without a waiver . The Executive Director lacks the authority to issue a waiver.4 Heather, on A.B.’s behalf , sought an injunction , claiming WVSSAC’s decision to deny A.B. a waiver was arbitrary and capricious and denied A.B. equal protection of the law. The injunction request also alleg ed the Residence

- Transfer Rule was itself arbitrary and capricious and violated equal protection.

At a preliminary injunction hearing before the circuit court , Mr. Dolan testified the rationale behind the Residence

- Transfer Rule was to allow a student to settle into a new school. He testified the Residence

- Transfer Rule addresses the pressures that inure on a new student in sports competition. Mr. Dolan also testified that the pressures of playing in a game are much higher than th e pressures of practice . He further testified that this explains why the Residence

- Transfer Rule prohibits a transfer student from playing in a game, but permits a student to do everything else associated with playing a sport

.

The circuit court applied th e preliminary injunction test set forth in Jefferson County Board of Education v. Jefferson County Education Association , 183 W. Va. 15, 24, 393 S.E.2d 653, 662 (1990 ). It concluded A.B. demonstrated the likelihood of irreparable ha rm if she was not permitted to play sports at Wheeling Central Catholic , and that , conversely, the WVSSAC would not suffer any harm if A.B. was permitted to play. The circuit court also concluded the public interest favor ed the preliminary injunction. Most importantly, it found that A.B. was likely to succeed on her substantive claims, which the circuit court charac terized as: (1) “Was [the Residence

- Transfer Rule] written in an arbitrary and capricious fashion or was it written in such a way as to be rationally related5 to a legitimate purpose?” and, (2) “Was [the Waiver Rule] applied in this case in an arbitrary and capricious manner?” The circuit court specifically concluded it “ha [d] the authority to determine whether the WVSSAC rule in question was written, promulgated or applied in an arbitrary or capricious manner and whether it was rationally related to a legitimate purpose.” The court found A.B. was likely to be successful in her challenges “in as much as [sic] [the Residence

- Transfer Rule] appears to be written in an arbitrary fashion and not rationally related to a legitimate purpose, while [the Waiver Rule] appears to have been applied by the WVSSAC in an arbitrary and capricious manner.”

The circuit court specifically discounted the “ settling in ” rationale for the Residence

- Transfer Rule as “ it appears arbitrary to this Court that a ‘settling in’ process would permit a student to do everything with her new team except play in games.” The circuit court found it difficult to understand the rationale of the WVSSAC as to how sitting on a bench du ring games to avoid the “ pressure of competition ” is less damaging than allowing the transferring student to experience the benefits of actually playing with your team in a game and to experience the comradery that goes with the glory of victory and the ag ony of defeat.

The circuit court found that the Residence

- Transfer Rule treated similarly situated students differently. It observed that a student whose residence was only a ten

minute drive from the new school must “ settle in, ” but a student transferring from California to that same school may play in games immediately. Similarly, a student6 transferring from a non

- member WVSSAC school to a WVSSAC member school did not fall within the Residence

- Transfer Rule. The circuit court concluded that the Residence

Transfer Rule “just appears to be written in an arbitrary and capricious mann er and offends the equal protection guarantees of the West Virginia Constitution.”

The circuit court also concluded the WVSSAC applied the Waiver R ule in an arbitrary and capricious manner because at each level of the WVSSAC proceedings, A.B. presented uncontradicted evidence that playing sports was a mental health issue to her

. Thus, t he circuit court found application of the Residence

- Transfer Rule caused A.B. extreme and undue hardship under the Waiver Rule

.

The WVSSAC now seeks a writ of prohibition from this Court prevent ing enforcement of the preliminary injunction

.

II. Standard of Review and Standard for Issuance of the Writ We may review a circuit court’s issuance of a preliminary injunction either by way of our appellate jurisdiction over civil cases in equity or by way of our original jurisdiction sounding in prohibition

. State ex rel. McGraw v. Telecheck Servs., Inc. , 213 W. Va. 438, 445

- 46, 582 S.E.2d 885, 892

- 93 (2003) . The WVSSAC invokes our original jurisdiction in prohibition to challenge the preliminary injunction

. “[W] e have held in numerous cases that a writ of pro hibition will lie to control the actions of a court which exceeds, abuses, or acts without jurisdiction. ” State v. Lewis , 188 W. Va. 85, 91, 422 S.E.2d7 807, 813 (1992) , superseded by statute on other grounds as recognized in State v. Butler , 239 W. Va. 168, 179 n.27 , 799 S.E.2d 718, 729 n.27 (2017)

.

A party seeking a writ of prohibition carries a heavy burden. State ex rel. Webb v. McCarty , 208 W. Va. 549, 552, 542 S.E.2d 63, 66 (2000) . “P rohibition

. . . is an extraordinary remedy, the issuance of wh ich is usually ‘ reserved for really extraordinary

causes. ’ ” State ex rel. Davidson v. Hoke , 207 W. Va. 332, 335, 532 S.E.2d 50, 53 (2000) (quoting State ex rel. Suriano v. Gaughan , 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996) (internal quotations and citations omitted) )

. In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court wil l examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whethe r the lower tribunal ’ s order is clearly erroneous as a matter of law; (4) whether the lower tribunal ’ s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal ’ s order rai ses new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight. Syl . Pt. 4, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996)

.8 W e review the circuit court ’ s decision that it has subject

- matter jurisdiction de novo , State ex rel. Orlofske v. City of Wheeling , 212 W. Va. 538, 542, 575 S.E.2d 148, 152 (2002) , and apply de novo review as well to the court’s decision addressing the constitutionality of a n administrative rule. Simpson v. W. V a. Off. of Ins. Co m m ’ r , 223 W. Va. 495, 503

- 04 , 678 S.E.2d 1, 9

- 10 (2009)

. We now apply these standards to this case.

III. Discussion
A. This Court’s subject
- matter j urisdiction . W e are compelled to pause as we identify a potential impediment to our own jurisdiction. “[T] his Court has a responsibility sua sponte to examine the basis of its own jurisdiction. ” Syl. Pt. 1 , in part, James M.B. v. Carolyn M. , 193 W. Va. 289, 456 S.E.2d 16 (1995)

. The Residence

- Transfer Rule bars transfer ring students from playing sports for
365

- days from the date of enrollment at a new school without a bona fide change of residence or a waiver. A.B. enrolled in Wheeling Central Catholic on August 25, 2021. Thus, 365

- days have passed and A.B. is now eligible to play sports at Wheeling Central Catholic

. This mea ns the case before us is technically moot. “ Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” State ex rel. Bluestone Coal Corp. v. Mazzone , 226 W. Va. 148, 155, 697 S.E.2d 740, 747 (2010) (quoting Powell v. McCormack , 395 U.S. 486, 496 (1969) (internal citation omitted) )

. Mootness is a jurisdictional question. North Carolina v. Rice , 404 U.S. 244, 246 (1971) (per curiam). “ Generally, moot questions are not pr oper for consideration by this Court. ” State ex rel. Jeanette H. v. Pancake , 207 W. Va. 154, 159,9 529 S.E.2d 865, 870 (2000)

. W e have , though, m itigated the mootness rule through Syllabus Point 1 of Israel by Israel v. West Virginia Secondary School [] Activities
Commission , 182 W. Va. 454, 388 S.E.2d 480 (1989) , where we held: Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will de termine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.
W e conclude we have jurisdiction under the second and third Israel factors. Under the second Israel factor, A.B. is not the only student affected by the Residence

- Transfer Rule and a decision as to the constitutionality of the Residence

- Transfer Rule is requi red for guidance to the bench and to these other students . Under the third Israel factor, students challenging the Residence

- Transfer Rule will only have 365

- days to challenge the permissibility of the Rule. R esolution of such a dispute would necessarily h ave to occur within that finite 365

- day window and that may not be possible. As such, we have jurisdiction.

B. The Waiver Rule . The circuit court concluded it had the authority to determine whether the
WVSSAC ’s decision to grant a waiver was arbitrary and capricious. Because circuit court s lack jurisdiction to adjudicate as

- applied challenges to WVSSAC rules, t he circuit court10 clearly erred as a mat t er of law in concluding it had such authorit y . As such, a writ of prohibition is appropriate.

“ Nothing in the jurisprudence of this Court supports the trial court ’ s foundational premise that courts are permitted to second guess the manner in which the [WV] SSAC applies its rules. ” State ex rel. W

. V a. Secondary Sch. Activit [ies] Comm ’ n v. Webster , 228 W. Va. 75, 80, 717 S.E.2d 859, 864 (2011) . Indeed, our law is to t he contrary. “As a general rule courts should not interfere with the internal affairs of school activities commissions or associations.” Syl. Pt. 2, State ex rel. W . Va. Secondary Sch

. Activities Comm’n v. Oakley , 152 W.Va. 533, 164 S.E.2d 775 (1968). Thus, “ [c] oincident with the legislative grant of authority to the [WV] SSAC to ‘ exercise the control, supervision and regulation of all interscholastic athletic events, ’ [under West Virginia Code § 18

- 2

- 25 (2008) ], matters falling within the provin ce of the [WV] SSAC ’ s bailiwick are, as a rule, beyond the purview of court interference. ” Webster , 228 W. Va. at 83

– 84, 717 S.E.2d at 867

– 68

. 4 In Syllabus Point 3 of Webster we specifically held: Decisions properly within the purview of the legislative grant of authority to the West Virginia Secondary Schools Activities Commission under West Virginia Code § 18

– 2

– 25 (2008), such as the application of WVSSAC Rules and the review of calls or rulings m ade by game officials, are not subject to judicial review

.

4 Identical language is contained in the latest version of West Virginia Code § 18

- 2

- 25 (b) (202 0)

.11 Id. at 76 , 717 S.E.2d 860 (emphasis added)

. “ By superimposing its judgment on how the [WV] SSAC applied its own rules

. . . the trial court exceeded its jurisdiction. ” Id . at 84, 717 S.E.2d at 868 ( emphasis deleted). We therefore hold that the WVSSAC is entitled to a writ of prohibition.

C. The Residence
- Transfer Rule . While we have held that courts lack jurisdiction o ver as - applied challenges to WVSSAC rules, we have also found that judicial review is available when a plaintiff claims t hat a WVSSAC rule is , among other things, facially unconstitutional. “ [A ] [WV] SSAC rule is subject to challenge, like all properly promulgated legislative rules, on grounds that it exceeds constitutional or statutory authority and for being arbitrary or capricious. ” Mayo v. W est Virginia Secondary Sch. Activities Comm’n , 223 W. Va. 88, 95
n.17 , 672 S.E.2d 224, 231 n.17 (2008)

. The circuit court concluded the Residence

- Transfer Rule was unconstitutional

. We believe the circuit court clearly erred as a matter of law in reaching th at conclusion . In so doing, it exceed ed its legitimate authority. T herefore, a writ of prohibition should issue.

When presented with an equal protection challenge under the West Virginia Constitution , 5 we first determine which of one of t hree test s apply : strict scrutiny,

5 The West Virginia Constitution does not contain an equal protection clause

. Instead, West Virginia’s equal protection principles emanate from the West Virginia Constitution ’s due process clause. Syl. Pt. 3, Robertson v. Goldman , 179 W. Va. 453, 369 S.E.2d 888 (1988) (“ The concept of equal protection of the laws is inherent in article three,12 intermediate scrutiny, or rational basis. Lewis v. Cana an Valley Resorts, Inc. , 185 W. Va. 684, 691, 408 S.E.2d 634, 641 (1991)

. Statutes and administrative regulations challenged as violating equal protection that do not i nvolve a suspect or quasi

- suspect class are reviewed under the “highly deferential standard ” of the rational basis test

. Appalachian Power Co. v. State Tax Dep’t , 195 W. Va. 573, 594, 466 S.E.2d 424, 445 (1995). A.B. has not argued that students wishing to p l ay school sports constitute a suspect or quasi

- suspect class, and the law is contrary to such a finding. Cf

. Walter T. Champion, Jr., Fundamentals of Sports Law § 15:6 (Westlaw Jan. 2022 update) ( observing that athletes are not a suspect class). Because students wi shing to play high school sports are not a suspect or quasi

suspect class, the r ational basis test applies to the Residence

- Transfer Rule. See , e.g. , In re
U

nited States ex rel. Missouri State High Sch. Act ivities Ass’n , 682 F.2d 147, 152 (8th Cir. 1982) (“ Since athletes are not a suspect class

. . . the standard of judicial scrutiny which should be applied is the rational relationship test. ”) ; Parker ex rel. Parker v. Arizona Interscholastic Ass ’ n , Inc ., 59 P.3d 806, 812 ( Ariz. Ct. App. 2002) (“B ecause Parker is not a member of a suspect class

. . . the rational basis test is the appropriate test to determine whether the transfer rule violated Parker ’ s equal protection rights. ”).

section ten of the West Virginia Constitution, and the scope and application of this protection is coextensive or broader than that of the fourteenth amendment to the United States Constitution. ”). We have historically draw n on federal case law interpreting federal equal protection principles in interpreting West Virginia’s equal protection principles.13 A p laintiff challenging a statute or rule under the rational basis test f ace s “a tremendous uphill battle.” Payne v. Huntington Union Free Sch. Dist. , 219 F. Supp.2d 273, 284 (E.D.N.Y. 2004). “ There is a ‘ strong presumption of validity ’ when examining a statute under rational basis review, and the burden is on the party challenging the validity of the legislative action to establish that the statute is unconstitutional. ” Maages Auditorium v. Prince George’s Cnty , 4 F. Supp.3d 752, 776 (D . Md. 2014) (citation omitted), aff’d , 681 F. App ’ x 256 (4th Cir. 2017) (per curiam)

. “ To find that a rule or statute is unconstitutional, it must be shown that the rule or statute is unconstitutional beyond a reasonable doubt [.]” Johnson v. Bd. of Stewards of Charles Town Races , 225 W. Va. 340, 342, 693 S.E.2d 93, 95 (2010)

. Consequently, c hallenges to a statute or r ule under rational basis review rarely succeed. See , e.g. , Massachusetts v. United States Dep’t of Health &
Hum. Servs. , 682 F.3d 1, 9 (1st Cir. 2012) (“ Equal protection claims tested by this rational basis standard

. . . rarely succeed. ”); Zombro v. Baltimore City Police Dep't , 868 F.2d 1364, 1376 (4th Cir. 1989) ( Murnaghan, J ., concurr ing in part and dissenting in part ) ( “Under rational basis scrutiny plaintiffs rarely prevail.” ). T his case is no t one of those rarities.

Under the rational basis test , a court ask s only if the challenged statute or rule

“ rationally furthers a legitimate state purpose or interest. ” San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 55 (1973)

. Rational basis review represents “a paradigm of judicial restraint [,] ” F.C.C. v. Beach Communications., Inc. , 508 U.S. 307, 314 (1993) , as “the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative14 policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” Lewis , 185 W.Va. at 692, 408 S.E.2d at 642

. “In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. ” Romer v. Evans , 517 U.S. 620, 632 ( 1996)

. “In fact, we will not strike down a law as irrational simply because it may not succeed in bringing about the result it seeks to accomplish[.]” Powers v. Harris , 379 F.3d 1208, 1217 (10th Cir. 2004).

“ [I] f the State ’ s purpose is found to be legitimate, the state law stands as long as the burden it imposes is found to be rationally related to that purpose, a relationship that is not difficult to establish. ” Metro. Life Ins. Co. v. Ward , 470 U.S. 869, 881 (198 5)

. A n equal protection challenge may not succeed under the rational basis test as long as the question of rational relationship is “at least debatable

. ” W. & S. Life Ins. Co. v. State Bd. of Equalization , 451 U.S. 648, 674 (1981) (q uoting United States v. Carolene Prod s. Co ., 304 U.S. 144, 154 (1938))

.

In the instant case, we believe the Residence

- Transfer Rule meets the minimal constitutional threshold the highly deferential rational basis test imposes . We have recognized that promoting academics over athletics is a legitimate state purpose. Jones v. West Virginia State Bd. of Educ., 218 W. Va. 52, 59, 622 S.E.2d 289, 296 (2005)

. Allowing students to settle into a new academic environment without the pr essure of competing in school sports is rationally related to promoting academics over athletics

. The Residence

Transfer Rule eliminates the temptation of a new student to ignor e or minimiz e academic15 effort and to instead concentrat e on sports practic e with the goal of earning playing time in a real game

. 6 At the very least, this rationale is debatable , which is all that rational basis requires for us to uphold the Residence

- Transfer Rule. 7

Finally, t he circuit court was concerned that the Residence

- Transfer Rule detrimentally classified certain groups of students compared to other groups of students . It posit ed several hypothetical scenarios to challenge the Residence

- Transfer Rule. Such hypothetical s are not for the courts to consider. “ This Court has consistently recognized that ‘ the classification process is peculiarly a legislative function. ’” Marcus v. Holley , 217 W. Va. 508, 524, 618 S.E.2d 517, 533 (2005) (quoting O’Dell v. Town of Gauley Bridge , 188 W.Va. 596, 602, 425 S.E.2d 551, 557 (1992) ) ; see also United State s R.R. Retirement. Bd. v. Fritz , 449 U.S. 166, 179 (1980) (internal citation omitted) (“ The ‘ task of classifying

6 We think that Mr. Dolan articulated this rationale, if somewhat inchoately, in the preliminary injunction hearing before the circuit court. Even if not, “ this court must independently consider whether there is any conceivable rational basis for the classification, regardless of whether the reason ultimately relied on is provided by the parties or the court. ” Teigen v. Renfrow , 511 F.3d 1072, 1084 (10th Cir. 2007) ; see also Starlight Sugar, Inc. v. Soto , 253 F.3d 137, 146 (1st Cir. 2001) ( recognizing that even if the government’s stated justification for enforcing a regulation is insufficient to uphold the rationality of the regulation, a court has the obligation to seek out other conceivable reasons validating the regulation).

7 Our decision that there is a rational basis for the Residence

- Transfer Rule also deals with any claim the rule is arbitrary and capricious. Jones , 218 W. Va. at 62, 622 S.E.2d at 299 (“ Our discussion under the ‘ Equal Protection ’ portion of this opinion, Section III.B., supra, demonstrates that this rule is not arbitrary or capricious as it is rationally related to the legitimate state purposes of promoting academics over athletics and protecting the economic interests of the county school systems.”).16 persons for

. . . benefits

. . . inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, ’ and the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration. ”). W here no suspect or quasi

- suspe ct class is concerned, legislat ive bodies have wide latitude in making classification s
. S ee , e.g. , City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 440 (1985) (“ When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude [.]”). “ The problems of government are practical ones and may justify, if they do not require, rough accommodations

- illogical, it may be, and unscientific. ” Metropolis Theater Co. v. City of Chicago , 228 U.S. 61, 69

– 70 (1913)

. Consequently, “ [i] n the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.” Dandridge v. Williams , 397 U.S. 471, 485 (1970). “ Even if the classification involved here is to some extent both underinclusive and overinclusive, and hence the line drawn

. . . imperfect, it is nevertheless the rule that in a case like this ‘ perfection is by no means required. ’ ” Vance v. Bradley , 440 U. S. 93, 108 (1979) (quoting Phillips Chem

. Co. v. Dumas Sch

. Dist ., 361 U.S. 376, 385 (1960) ). As we said in addressing a different type of residency requirement : There is no doubt that the residency requirement here is not perfectly designed to achieve its purposes. It is also undisputed that the [ legislating body ] could have crafted a more restrictive requirement better suited to its purposes. These considerations , however, are not relevant to the constitutional inquiry called for in this case.17 Morgan v. City of Wheeling , 205 W. Va. 34, 45, 516 S.E.2d 48, 59 (1999)

. We agree with the United States Court of Appeal for the Eight h Circuit when it found a residence

- transfer rule constitutional : Whether the rule is wise or creates undue individual hardship are policy decisions better left to legislative and administrative bodies. Schools themselves are by far the better agencies to devise rules and restricti ons governing extracurricular activities. Judicial intervention in school policy should always be reduced to a minimum. Missouri State High Sch. Activities Ass’n , 682 F.2d at 152

– 53 (footnote omitted)

. 8

We therefore hold that the West Virginia Second ary School Activities Commission’s Residence

- Transfer Rule , W est Virginia C ode of State Rules § 127

- 2

- 7.2.a (2021) , is n either arbitrary and capricious nor a violation of equal protection

. Given the

8 A.B. asserts three other W heeling Central Catholic students , who sought to intervene in A.B.’s circuit court injunction case after they had been denied a waiver from the WV SSAC , were allowed to play softball at Wheeling Central Catholic

. A.B. tries to support the assertion that these students played softball by citing to two stipulations of dismissal which A.B. attached a s exhibits to her summary response. We give these exhibits ( a nd b y extension A.B.’s argument supported by them) no consideration. First, these exhibits are not properly before this Court since they were not presented to us as a supplemental a ppendix r ecord. See , e.g. , Smith v. Smith , No. 14

- 0759, 2015 WL 3688867, at *1 n.1 (W. Va. June 15, 2015) (memorandum decision) (“ Respondent also filed eight

‘ exhibits ’ attached to, and cited throughout, his response. As respondent filed no motion with these ‘ exhibits ’ and the same do not comply with the Rules of Appel late Procedure, we decline to consider those items not provided in the appendix record and all references thereto in respondent ’ s brief. ”). Second, t he terms of the settlements are not included in the exhibits and there is nothing else in the exhibits prov ing the students did play softball for W heeling Central Catholic . Thus , the only basis for saying these students played softball is counsel’s representation s , which are not evidence. State v. Benny W ., 242 W. Va. 618, 629, 837 S.E.2d 679, 690 (2019).18 circuit court’s clear legal error in concluding otherwise, we grant the WVSSAC its requested writ of prohibition and dissolve the circuit court’s preliminary injunction.

IV. Conclusion For the foregoing reasons, we grant the requested writ of prohibition and dissolve the circuit court’s March 4, 2022 , preliminary injunction

. Writ granted.