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Teachers Union Challenges Back-to-School Order

For West Virginia school children to receive the best education available they need to be back in the classroom with a trained, dedicated teacher in front of them.

But as our state continues to struggle with containing the virus, there are lingering questions about when and how school should resume.

The State Board of Education this week made its position clear.  The members approved a motion requiring counties to resume in-person instruction next week.  As our Brad McElhinny reported, the Board’s action “would prevent county school systems from opting for remote learning after January 19, countermanding decisions that had already been made by several local boards.”

The motion does give counties the option of using hybrid schedules where students are in classroom only a couple days each week to increase social distancing.

Several of the counties that had planned to continue remote learning will pivot and follow the state board’s directive, but not all. The American Federation of Teachers—West Virginia announced Thursday it will challenge the requirement in court.  (The West Virginia Education Association said it is also exploring legal options.)

AFT-WV said in a news release, “Appointed policymakers (the State Board) issuing in-person learning mandates to local boards, who are duly elected by the citizens of their communities to govern their local schools, is an incredible overstepping of authority.”

AFT makes a strong philosophical argument; local school officials are in the best position to understand the extent of the health threat from the virus and make decisions about when and how to reopen schools.

However, AFT faces a significant legal hurdle.

The West Virginia Constitution empowers the State Board to supervise public schools. Article XII, section 2 reads, “The general supervision of the free schools of the State shall be vested in the West Virginia board of education which shall perform such duties as prescribed by law.”

The provision has been tested in court and typically the power of the State Board carries the day.

For example, in a 1990 school consolidation case* in Kanawha County, the State Supreme Court ruled that the State Board had the authority to approve or disapprove the county’s consolidation closure plan.

In a 1984 case** the Supreme Court ruled that the State Board “has a duty to ensure that the constitutionally mandated educational goals of quality and equality are achieved.”

There are many similar cases where, in one form or another, the high court has referred to the broad powers of the State Board as provided by the state Constitution.

It can be reasonably argued that locally elected school boards should be able to make the final decision about how their schools operate.  However, as the Constitution says, and as the courts have consistently found, those decisions are subject to a higher authority.

*Kanawha County Board of Education v. West Virginia Board of Education, 399 S.E. 2d 31 (1990)

**Bailey v. Truby321 S.E.2d 302 (1984)




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