In a close vote, state senators passed a bill that would give the Legislature ultimate say-so over state Board of Education policies.
Senators voted 19-15 in favor of the bill. With just a few days left in the regular legislative session, the bill now goes back to the House of Delegates because it was amended in the Senate.
Three years ago, West Virginians rejected a constitutional amendment that would have given the legislature authority to review and approve the state Board of Education’s rules and policies, leaving the board’s current constitutional authority intact.
The proposed amendment on the November 2022 ballot was defeated by a 58%-42% vote.
“The voters of West Virginia three years ago said it was a bad idea,” state Board of Education member Paul Hardesty said this week on MetroNews’ “Talkline.”
“This is just a blatant attempt to circumvent the will of the voters in West Virginia.”
Now lawmakers are taking aim again at authority over West Virginia educational policies through House Bill 2755.
“This is good legislation that ensures accountability under the Legislature’s primacy,” said Senator Tom Willis, R-Berkeley.
The Senate this week adopted an amendment that starts by noting that the state Constitution’s Section 1, Article 12 begins by saying “The Legislature shall provide, by general law, for a thorough and efficient system of free schools including early childhood education.”
The Senate amendment then makes a case that the Legislature exercises authority over the state Board of Education and thus has ultimate say so on the rules governing the state education system.
The bill would require that all legislative rules enacted by the state board must first be authorized by the Legislative Oversight Commission on Education Accountability, which lawmakers call LOCEA. The proposed rules would then be submitted to the full Legislature for review.
The effort by legislators to take more control of state education policies not only runs up against the recent vote by the citizens, but it also runs in conflict with long-established precedent following state court reviews.
“This is an overreach. The voters have spoken on this issue,” said Senator Mike Woelfel, D-Cabell.
This issue was considered in 1988’s West Virginia Board of Education vs. Hechler, referring to then-Secretary of State Ken Hechler, whose office was being asked to file rules approved by the board.
The state Supreme Court, in that case, concluded that the Board of Education has “general supervision” of state schools under the Constitution and that any statutory provision that interferes with such rule-making is unconstitutional.
The state Board of Education includes 9 citizen members appointed by the governor with the advice and consent of the state Senate. Board members serve overlapping terms of nine years, and no more than five citizen members may belong to the same political party.
When the Legislature passes laws dealing with education, the state board and state Department of Education produce rules for how to comply with the law. In other words, the law is the broad picture and the regulations fill in the detail. Typically, legislators are looped in during that process.
The state board’s authority is laid out in the state Constitution’s Article XII, which the state Supreme Court has upheld in multiple instances. “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 may be prescribed by law.”
Hardesty said the issue should be settled law, despite the legislative activity.
“What are we doing here?” he asked.