Paul Hardesty
CHARLESTON – The president of the West Virginia Board of Education says an ACLU notice of intent to sue over school funding issues didn’t shock him.
“I am not really surprised by their filing of the notice,” Paul Hardesty told The West Virginia Record in a statement. “This is my fourth term as president of the West Virginia Board of Education. I have repeatedly asked for help with the current outdated school aid funding formula. To date, I have received none.”
On August 17, the American Civil Liberties Union of West Virginia sent the intent to file suit to state officials on behalf of a class of Lincoln County students alleging persistent underfunding of public schools violates the “thorough and efficient” education guarantee and the equal protection provisions of the state constitution.
The notice was sent to state Attorney General J.B. McCuskey, and it listed a host of state officials, including House Speaker Roger Hanshaw, State Senate President Randy Smith, Auditor Mark Hunt, Tax Commissioner Matthew Irby, Treasurer Larry Pack, the state Department of Education, the state Board of Education, the state School Building Authority and others.
Nearly fifty years ago, Lincoln County students brought the landmark case Pauley v. Kelly in which the West Virginia Supreme Court of Appeals established that a thorough and efficient education is a fundamental constitutional right. And in the 1982 Recht decision, a court documented in exhaustive detail how Lincoln County’s schools fell short of that standard and directed the state to fix it.
Now, more than 40 years later, the ACLU says Lincoln County students receive a worse education, across many metrics, than their parents and grandparents did.
“By some measures the schools are worse off than the system a court already found unconstitutional,” the ACLU says in a press release about its intent to sue.
Hardesty cited that 1982 Recht decision.
“It was litigation that came from Lincoln County 44 years ago that forced the courts to weigh in on the school aid formula,” he said. “Now, that outdated, antiquated funding formula will be revisited once again as a result of this pending litigation from Lincoln County.”
ACLU-WV Legal Director Aubrey Sparks said children are guaranteed the right to a thorough and efficient education in the state constitution.
“West Virginia made this promise concrete in 1982, when a court defined, in greater detail than any court in the country before or since, what a thorough and efficient education requires, and what falls short,” Sparks said. “Today, despite the passage of nearly 50 years since this right was first made concrete in the historic Recht decision, Lincoln County students are receiving a lower quality education than what their parents and their grandparents, received before them.
“The West Virginia Constitution does not and should not allow this profoundly important constitutional right to wither and die on the vine as the result of ongoing financial neglect by the defendants.”
The ACLU’s seven-page notice describes a school funding system that it says fails students statewide, with particularly dire effects in Lincoln County where current funding provides basic aid that is wholly insufficient to deliver an adequate education. It says special education receives only minimal state funding – far less than amounts previously deemed unconstitutional.
According to the ACLU, counties are left to bridge the gap, and their ability to do so depends on local property values, producing steep inequities. The gap in per-pupil spending between wealthy and poor counties is now more than three times larger than when that same disparity was declared unconstitutional, the ACLU says.
It also says the staffing formula often funds fewer positions per 1,000 students than the level found insufficient in 1982.
In Lincoln County, the ACLU says those failures translate into shortages of certified and experienced teachers, underfunded special education programs, aging facilities and unnecessary school closures.
In 2021, the Duval PK-8 school was condemned for structural issues. Since then, students in grades 2–8 have been taught in a former career-center building with no exterior windows or natural light in rooms that were once automotive bays and welding shops.
During the 2024-25 school year, no Lincoln County school met the state’s literacy proficiency standards.
“While legal responsibility for the underfunding remains to be determined by a court, the moral responsibility is clear and does not fall equally on every official named, some of whom have themselves publicly urged the state to meet its obligations,” the ACLU statement reads. “The lawsuit will seek declaratory, injunctive, and mandamus relief asking a court to declare the state's school funding system unconstitutional and to order the state to meet its duty to provide a thorough and efficient education.”
