A debate over who has the last say over West Virginia’s education regulations will go to oral arguments before the state Supreme Court.
Justices earlier this month entered an order for a case focused on that question to proceed to oral argument. The date and time of the oral arguments will be set later.
The most likely time period for the oral arguments would be this fall.
The court adjourned its winter and spring term on June 11. The next regular term of court does not begin until Sept. 2, when it will resume hearing oral arguments in selected cases.
When the court does resume oral arguments it will be with a reconstituted lineup of justices. Bill Flanigan and H.L. Kirkpatrick were sworn in last week after winning election to unexpired terms. They will join Chief Justice Haley Bunn and justices Bill Wooton and Charles Trump.
Flanigan, who until recently was a Republican state delegate from Ohio County, voted in favor of the 2025 law being challenged in this case although he did not cast a vote on final passage.
At the center of the conflict is House Bill 2755, which 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.
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 state Board of Education filed to have the state Supreme Court review the constitutionality of the new law.
The West Virginia Constitution says, “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.”
There is some duality of the responsibilities because the Constitution also says, “The Legislature shall provide, by general law, for a thorough and efficient system of free schools.”
The way the balance has typically been struck in practice is that the Legislature passes laws about education and the superintendent and state board are responsible for filling out the details through specific rules.
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.
Fifty-seven percent of voters said no and 42% said yes, leaving the board’s current constitutional authority intact.
A similar vote occurred in 1989 with the same result.
The effort by legislators to take more control of state education policies not only runs up against the votes 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 back then, 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.