The state Board of Education is pursuing litigation against Secretary of State Kris Warner after his office rejected the filing of a policy that board members approved during a special meeting today in Charleston.
The legal conflict hit after board members voted 9-0 earlier in the afternoon to file a fairly ordinary policy about standards for school transportation equipment with the Secretary of State’s Office.
“But today, the reason this policy is being taken up is actually not routine,” Kelli Talbott, general counsel for the state Department of Education, told board members and department officials.
That’s because a bill passed during the regular legislative session, House Bill 2755, has taken effect.
The legislation 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.
That runs counter to the way the board has operated until now. The state board has had the final say on the policies that fill in the details on how to carry out education laws passed by the Legislature.
Typically, the board would finalize a policy and then submit it directly to the Secretary of State’s Office, as members voted to do today.
But the new law requires a different route: that all legislative rules enacted by the state board 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 board, at a meeting in May, indicated its intention to challenge the new law’s constitutionality.
So depending on what the Secretary of State’s Office decides to do, this could kick off a review by West Virginia courts.
“And so by voting to file it with the Secretary of State with an effective date, you’re you’re challenging the purported requirements of House Bill 2755,” Talbott told board members.
“In other words, we’re proposing that this rule go into effect 30 days upon filing, not after it goes through the full legislature for an effective date. Of course, the board’s position is and has been that that House Bill, 2755 is unconstitutional.”
The Secretary of State’s office today said it would have to abide by state law. Deak Kersey, chief of staff for the Secretary of State, said the office is reviewing the state board’s position on House Bill 2755 and will communicate accordingly.
“We want to acknowledge that the separation of powers doctrine requires the Secretary of State to follow the law passed by the legislature, as the Secretary of State’s role here is mostly ministerial,” Kersey said.
“Except for emergency rules where we work on temporary approvals, we simply host the database, review rule drafts for formatting, and help agencies with deadlines and using the system. Importantly, only the judicial branch has authority to weigh in on questions of constitutionality.”
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 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 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, reviewing the situation, 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.
During the most recent legislative session, lawmakers who supported the bill suggested state courts might interpret it differently this time.
As the bill was up for a passage vote in the House, Delegate Mike Pushkin, D-Kanawha, asked a series of questions to the legislation’s main sponsor, Delegate Michael Hornby, a Republican from Berkeley County.
“Would you agree that, according to Board of Education versus Hechler, that this would would be considered unconstitutional?” Pushkin asked.
“Well,” Hornby responded, “I think Supreme Court has gotten decisions wrong before, so I’d like to revisit that.”
Pushkin slightly changed how he asked the question, and Hornby then responded, “Some people could think it would be unconstitutional. I don’t.”
Pushkin then asked, “So is the point of this bill to go back to court and get another ruling?”
“No,” Hornby said, “the point of this bill is to put the Department of Education under legislative rules. The point of this bill is to make our education system better, which is what we’re here for.”