dissenting:
I do not quarrel with the majority’s interpretation of W.Va. Code § 18-5-18 as granting to school boards sufficient discretion to accommodate five-year-olds whose birthdays fall after September 1st, but I believe that the Mason County Board of Education exercised that discretion in this case and that it is not the function of this Court or any court to impose its will where an executive body was granted discretionary power and did not, in its exercise of said power, do so arbitrarily.
Moreover, a reading of § 18-5-18 in pari materia with other sections of the Code indicates that enforcement of the September 1st cut-off may be what the Legislature in fact intended. West Virginia Code § 18-5-18 requires county boards of education to provide kindergarten programs for all children who have reached age five by September 1st. This date was substituted for November 1st by an amendment in 1983. In the same session, the Legislature amended § 18-2-5 to say:
Notwithstanding any other provision of law which may be to the contrary, and notwithstanding the rulemaking powers given to the state board of education by this section, a child shall not be permitted to enter the public schools of this State in any school year, beginning with the school year [1983-84], unless such child be six years of age prior to September one of such school year....
This section on its face establishes a mandatory September 1st cut-off for attending first grade. Prior to 1983, § 18-2-5, like § 18-5-18, had specified November 1st as the cut-off date.
The interpretation given to § 18-5-18 by the majority thus could result in children who have completed kindergarten being unable to begin first grade the following year. I believe that the two sections, read together, evidence a legislative intent to make September 1st the cut-off for Kindergarten as well as first grade. At a minimum, the Board in this case was within its discretion when it denied admission to a child whose birthday fell after September 1st.
Any cut-off date will result in children who are very close in age being placed in different school classes. This “hardship”, if it is one, is not the sort of “undue hardship” contemplated by the Court in Detch v. Board of Education. That case upheld a West Virginia Board of Education rule that denied admission to children who had not reached age 6 by November 1st. The cut-off in Detch was later in the year, but the child in that case, whose birthday fell *36on November 3rd, felt a hardship very much like that which the Board would have “inflicted” in this case but for the majority’s intervention.
For the foregoing reasons, I respectfully dissent.