The court system has left several matters to be considered, potentially, by the Legislature in the coming year.
Those tasks include possibly revisiting a ban on some artificial food additives, clarifying whether West Virginia’s religious freedoms law directly affects longstanding school vaccinations requirements and revisiting the approval process for charter schools.
It’s not a given that those matters will be points of emphasis when the annual regular session kicks off Jan. 14, but activity in the courts has left openings for legislative action.
Food dye ban with further definition
Last spring, Gov. Patrick Morrisey signed into law the prohibition of certain food dye, set to go in effect in 2028.
The statewide ban would target nine specific substances that the law classifies as “poisonous and injurious” to health.
The prohibited additives include two preservatives: Butylated hydroxyanisole and propylparaben. And included are seven synthetic color additives: FD&C Blue No. 1, FD&C Blue No. 2, FD&C Green No. 3, FD&C Red No. 3, FD&C Red No. 40, FD&C Yellow No. 5 and FD&C Yellow No. 6.
U.S. District Judge Irene Berger last month found the law likely to be unconstitutionally vague because it failed to provide adequate notice or standards to prevent arbitrary enforcement by the West Virginia Department of Health.
Berger ordered a preliminary injunction. The case will go on, with a higher level of scrutiny in court, but until there’s a resolution the West Virginia Department of Health is barred from enforcing the ban.
The chairman of the health committee in the House of Delegates agrees lawmakers might have to adjust an upcoming ban on some artificial food additives following a judge’s order.
“I think our law is solid, but I want to clarify: This law doesn’t take effect or didn’t plan to take effect until January 1 of 2028, still two years away,” Delegate Evan Worrell, R-Cabell, said on MetroNews Talkline.
“So this allows us to come back during the legislative session, and look at this law and take into consideration this judge is ruling, and how can we effectively, you know, make sure that it does pass the muster for what this judge had to say.”
Worrell, on statewide radio, said he does not believe the law is unconstitutional but he agreed its definitions might need to be more precise.
“I think maybe it is vague and we need to properly define that, of course, with studies. And we need to make sure that we’re propping up whatever laws we have, that the Department of Health has to enforce, that they are accurately worded so they can enforce them,” he said.
“So we’ll take a look at that. You know, counsel will look at that as we go in the new session and tweak whatever may have to do.”
Religious freedoms vs school vaccination requirements
The state Supreme Court is on track in the coming year to review the interplay between a religious freedoms law and the longstanding school vaccinations law.
Meanwhile, it’s possible — though perhaps not probable — that the Legislature could revisit this issue.
During his first few weeks in office last year, Governor Morrisey issued an executive order and directed families to apply for religious exemptions to school vaccination requirements through the state health department, but West Virginia school systems have not accepted them.
Morrisey described the basis as the “Equal Protection for Religion Act,” which went into law in 2023.
The policy lays out the ability of individuals who believe their religious rights have been violated to seek a claim in court. The law says no state action may burden an individual’s exercise of religion unless it’s essential to furthering a compelling governmental interest and is the least restrictive means of achieving that.
Morrisey called for legislation last year specifically allowing West Virginia families to declare religious and philosophical exemptions to the state’s school vaccination requirements. However, last March 24, the House of Delegates voted 42-56 to kill a bill reflecting that policy.
So what remains in West Virginia code is a requirement that West Virginia students entering school for the first time show proof of immunization against diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella, and hepatitis B unless properly medically exempted. The law does not specify any religious exemption.
The Legislature this year could consider a policy clarifying whether the Equal Protection for Religion Act directly affects the school vaccination law. But it’s not clear whether the collective will exists to take that up.
“This issue is not going away. However, I don’t think it’s necessarily the best use of time to bring this issue up on the Senate side again, because we’ve proven that we care about constitutional rights and can pass the bill,” Senate Health Chairwoman Laura Wakim Chapman, R-Ohio, told West Virginia Watch.
“So from my perspective, I think a bill needs to come from the House if it will pass this session.”
Worrell, her counterpart in the House of Delegates, told West Virginia Watch that a vaccine exemption bill is not particularly his priority. But he said he’s willing to listen to his fellow legislators.
“It’s not a priority of mine personally, to push through a vaccine exemption bill, especially in light of everything that’s going on through the court system,” Worrell said. “But if the caucus and or the committee, the majority of members feel that that’s something we need to take a look at, we need to take up, then we’ll do it.”
Charter schools approval process
West Virginia passed a law allowing charter schools for the first time in 2019. Charter schools would receive financial support from the state’s public education system and would be given greater operational latitude in exchange for the possibility of losing their right to operate if they fail.
Initially, authorization for charter schools went only through county boards — or the state school board in a few instances. The first applicant was rejected in 2020 by the Monongalia and Preston county boards.
So the Legislature established a new pathway to approval, adding a West Virginia Professional Charter School Board as an authorizer. Board members are appointed by the governor and then go through confirmation by the state Senate.
That process was challenged in court, based on a section of the state Constitution that says “no independent free school district, or organization shall hereafter be created, except with the consent of the school district or districts out of which the same is to be created, expressed by a majority of the voters voting on the question.”
The plaintiffs contended that the state’s Professional Charter Schools Board created charter schools without the constitutionally required voter consent.
A December order by Kanawha Circuit Judge Jennifer Bailey would halt the authorization of new charter schools in West Virginia without voter consent. But her order provides some latitude.
First, the judge enjoined the West Virginia Professional Charter Schools Board from authorizing any new schools without the consent of affected county voters. But this first step would not affect the operations of the eight charter schools already approved by the state oversight board, avoiding disruption to current students, families and educators.
Second, the order provides time for the Legislature and governor to respond by having special elections to get the consent of voters with charter schools proposed for their communities.
The order envisions “allowing a reasonable time for the Legislature and Governor to respond to the permanent injunction through either legislative-authorized or governor-called special elections to obtain the consent of affected county voters” in compliance with the state Constitution.
Finally, if the Legislature and governor don’t act, then the judge would consider yet another permanent injunction to enjoin the West Virginia Professional Charter Schools Board from permitting continued operations of the eight charter schools already authorized without voter consent.
Lawyers for the Professional Charter Schools Board have already filed their intent to appeal. That filing asks for the circuit court order to be halted, in part, because of immediate pressure on the Legislature.
“Legislators will thus face a choice: (1) accede their legislative powers to the circuit court by passing legislation that the circuit court might consider timely ‘compliance’ or (2) face more orders (or even potential contempt sanctions). The Court should not force legislators into such a dilemma,” wrote the lawyers for the charter school system.
The chairwoman of the House Educational Choice subcommittee, Delegate Kathie Hess Crouse, expressed strong disagreement with the circuit court order but said it’s “too soon to say at this point” whether legislation to address it would be considered during the regular session.