CHARLESTON – The West Virginia Board of Education plans to take legal action against the Secretary of State’s office because of a new law that changes how board policies are approved.
The state BOE filed a policy about school transportation equipment standards earlier this week with Secretary of State Kris Warner’s office as a test of the effects of House Bill 2755, which was passed earlier this year and went into effect last week.
Warner’s office told the BOE its function in the process is “ministerial” and said only the judiciary can determine the constitutionality of laws.
The new law says the state Legislature now has authority over the state BOE and has the final decision on rules and policies. Previously, the BOE made decisions about policies to fulfill laws passed by legislators and would submit such policies to the Secretary of State’s office.
The new law requires such policies to be authorized by the Legislative Oversight Commission on Education Accountability (LOCEA) before being submitted to the full Legislature for review. Lawmakers can approve, reject or modify these policies, and the policies can’t go into effect without legislative approval.
After the bill became law, the BOE had said it would challenge the law’s constitutionality. The BOE says the state Constitution gives the board “general supervision of free schools of the state.”
The board also cites the 1988 state Supreme Court case of Board of Education v. Hechler in which the board successfully challenged a similar move by lawmakers. In addition, the BOE has said two public votes that shot down legislative efforts to expand authority over education. The most recent was a 2022 defeat of an amendment that would have required such legislative oversight by a 58-42 margin.
The BOE also notes that policy implementation will be delayed because of the change. Instead of policies taking effect in 30 days, they now will have to wait until the next legislative session for approval.
