Fate of any education bill might be in hands of West Virginia BOE

What happens if the West Virginia Legislature, during the special session planned for the next couple of months, enacts a bill requiring big changes in public schools?

You’ll have to ask members of the state Board of Education about that. They, not legislators, have the final say — according to the state Supreme Court.

How is that possible? Legislators make the laws. If they approve one and Gov. Jim Justice signs it, everyone has to obey, right?


I don’t recall a situation in which state BOE members refused to comply with a statute. But — if the law concerns how schools are administered, rather than some issue not related to education — the BOE can just say no to legislators.

High court members reaffirmed that just a year and a half ago, in a case involving a dispute between the state board and Nicholas County school officials, over a proposal to consolidate some schools.

Kanawha County Circuit Judge Louis H. “Duke” Bloom ruled in favor of the Nicholas County folks. Part of his decision was based on state law.

But the high court then (more on the “then”) in a moment, said Bloom was wrong in giving the statute books primacy over the state BOE.

In their 2017 ruling, high court justices referred to precedents in which their predecessors had determined the BOE has ultimate control over schools. One of the cases cited was the 1984 Pauley v. Bailey decision. You may know it better as the Lincoln County schools case.

In it, high court justices named the late Judge Arthur Recht of Wheeling to come up with a master plan aimed at ensuring Mountain State students get “thorough and efficient” educations. That resulted in the Recht Decision, which laid out a detailed blueprint for how schools should function.

Well, that hasn’t accomplished what Recht hoped it would. For that reason, legislators earlier this year attempted to enact an “omnibus education bill.” It failed, resulting in Justice’s call for a special session on the matter.

Another precedent cited by the 2017 court was a 1988 case, W.Va. Board of Education v. Hechler. Then, the court insisted the state constitution entrusts it to the state BOE to “ensure the complete executive delivery and maintenance of a ‘thorough and efficient system of free schools’ … Also in that decision, the court stated that “any statutory provision that interferes with such rule-making (by the state board) is unconstitutional.”

In their 2017 ruling, justices cited both the above cases, then proceeded to make it clear that the high court’s stance hasn’t changed.

Some contend that the state constitution makes the BOE subservient to the Legislature, because of a clause stating the BOE “shall perform such duties as may be prescribed by law.”

Wrong, the court decided in 2017. Justices cited “the sanctity of the constitutionally-granted general supervisory authority of the WVBOE …”

Unlike other executive branch arms of state government, “the Board enjoys a special standing,” the 2017 opinion stated.

Hammering the point home, justices agreed that “legislative action that impedes the general supervisory powers of the WVBOE is patently unconstitutional.” In other words, the state BOE’s nine members are all-powerful.

Back to the composition of the court, which is not what it was in 2017. Of the court’s five members, only two, Justices Elizabeth Walker and Margaret Workman, were serving in 2017. Two of the new members, Justices Tim Armstead and Evan Jenkins, have served as members of the Legislature and might be expected to have some sympathy for that body’s authority. The fifth justice, John Hutchison, has not been a lawmaker.

Would the new court rule differently on primary over public schools? I doubt it.

So, legislators’ hands are tied if the state BOE disagrees with them. Would it on another omnibus bill?

Consider that at least some BOE members made their displeasure with the last omnibus bill clear.

Mike Myer can be reached at mmyer@theintelligencer.net.


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