The chambers of the West Virginia Supreme Court of Appeals
CHARLESTON – The West Virginia Supreme Court of Appeals has been asked to decide who has the final say in matters regarding rules for the state education system: the Board of Education or the Legislature.
On October 3, the state Board of Education and Superintendent Michele Blatt filed a petition with the state Supreme Court, saying the Legislature is attempting to do the same thing it tried in 1988 by passing a law requiring the board to submit its rules and regulations to lawmakers for approval prior to enactment.
“This court rejected the Legislature’s power grab, declared the law unconstitutional and held ‘rule-making by the state Board of Education is within the meaning of ‘general supervision’ of state schools … and any statutory provision that interferes with such rule-making is unconstitutional,” Blatt and the board argue in their petition. “The Legislature now attempts the very same Constitutional coup this Court thwarted nearly forty years ago.”
During this year’s legislative session, lawmakers passed House Bill 2755, which amends state code to require the BOE to submit rules and regulations to the Legislature for approval prior to enactment, exactly like the law the Supreme Court declared unconstitutional in the 1988 BOE v. Hechler ruling.
“That law is as unconstitutional today as it was forty years ago, and this court should declare this iteration unconstitutional again,” the petition states. “After all, the Legislature cannot render unconstitutional laws constitutional by merely passing them again after this court strikes them down.”
The petition also notes state voters were asked in 1989 and 2022 to amend the state Constitution to give lawmakers the control sought with HB2755, but the voters shot down both efforts.
Typically, the Legislature passes laws about education while the state board and superintendent create rules to put those laws into action.
In July, the board voted 9-0 to file a school transportation equipment policy with Secretary of State Kris Warner’s office like it usually does. But, the SOS office said it had to reject the filing because of the new law, which first must be authorized by the Legislative Oversight Commission on Education Accountability (LOCEA) before being submitted to the full Legislature for review.
The state Board of Education wants the Supreme Court to issue an order compeling the Secretary of State to publish the board’s rules and declaring laws enacted by HB2755 unconstitutional.
“The question presented is: Do the laws enacted by House Bill 2755 violate the West Virginia Constitution and this court’s binding precedent in Hechler?” the board petition states.
The board says oral arguments aren’t necessary in this case.
“It is said that history repeats itself,” the petition states. “This case is a clear-cut example of that adage. … The West Virginia Constitution empowers the board with ‘general supervision’ over West Virginia’s public school system. … Under identical circumstances, this court ruled that law was unconstitutional and held that ‘any statutory provision that interferes with [the board’s] rulemaking is unconstitutional. …
“This case presents identical facts as in Hechler, down to the respondent refusing to file the board’s very same rule regarding school bus equipment and design. House Bill 2755 is just as unconstitutional as its 1988 predecessor, and the laws it enacted unconstitutionally interfere with board’s power of general supervision. …
“Because the laws enacted by House Bill 2755 are both unconstitutional and undermine the will of West Virginia’s electorate, this court should issue a writ of mandamus, direct the Secretary of State to publish the board’s rules without the legislative leash contemplated by House Bill 2755, and declare the laws enacted by House Bill 2755 unconstitutional.”
The board is being represented by Benjamin L. Bailey, Christopher D. Smith and Denali S. Hedrick of Bailey & Glasser.
