West Virginia lawmakers battle in court over the Board of Education’s independence

In April 2025, the West Virginia Legislature passed a law that would give itself power over state Board of Education regulations.

Voters have twice defeated constitutional amendment proposals that would have given the Legislature control. Lawmakers proceeded anyway, saying at the time they intended to trigger a lawsuit, so the West Virginia Supreme Court of Appeals would have to decide.

The school board filed suit in October of last year, and on Tuesday, the case came before the court.

Under the West Virginia Constitution, the state school board has wide powers to determine educational policy, from curriculum to the proper way for students to board a bus.

Other state agencies and boards can set rules, but whenever those rules are proposed, lawmakers get a chance to tweak them before they go into effect.

For instance, the Department of Natural Resources submitted a rule for legislative approval that sets up containment areas and disposes of carcasses for diseased animals .

The state school board is an exception. In 1958, the school board became an independent body with general supervision over schools, after voters approved a constitutional amendment.

The board filed its rules with the Secretary of State’s Office, and those rules were published in the State Register.

Over the years, the school board’s authority has been challenged. In 1988, the Legislature passed a law that would effectively give the Legislature the ability to review any policies passed by the school board. If the Legislature didn’t review the policy, then it was nullified.

The state Supreme Court struck that law down, ruling it violated the state Constitution, in a case brought by the Board of Education against then-Secretary of State Ken Hechler.

In 2025, Del. Mike Hornby, R-Berkeley, introduced a bill to force the school board to submit its rules before the Legislature, like most other state agencies. He said he did so knowing this would spark a court challenge.

“I do believe the Supreme Court got it wrong,” Hornby said.

Lawmakers passed the bill.

Later that year, the school board filed suit after the Secretary of State’s Office referred one of its rules regarding school bus design to the Legislature instead of publishing it.

The 1958 constitutional amendment was intended to separate education from partisan politics.

The last time the question of letting the Legislature have the final say over school board policy came to a vote, opponents cautioned that it would open the door to allowing politicians to impose their ideological will on how students are taught.

Voters agreed. Twice.

Voters rejected an amendment supported by Gov. Gaston Caperton in 1989 to give the Legislature and the governor oversight of the school board by a 9-to-1 margin. In 2022, 58% of voters rejected a similar proposal offered by the Legislature .

But Hornby said it was never his intention to take over the school board, or even to look at matters of curriculum. As a member of the Legislative Rulemaking Review Committee and the Legislative Oversight Commission on Educational Accountability, Hornby said he wanted to be able to work more closely with the school board in crafting policy.

“We can say all we want about school aid formulas, discipline, aides,” he said. “But if we can’t collaboratively work with the Department of Education to ensure that the rules that they’re passing meet what the standards and what the best practices are for West Virginia, then I don’t see the point.”

If Hornby’s law prevails, then lawmakers would have the option to strike rules offered by the Board of Education, or radically alter them.

However, the state school board argues that this kind of oversight is contrary to the will of the voters and the state constitution.

“Additionally, requiring WVBE policies to be reviewed by the State Legislature will result in delays that will be detrimental to student success and well-being,” the board said in a statement released in July 2025 prior to filing its suit.

The state Supreme Court met Tuesday to hear arguments about legislative authority over Board of Education rulemaking.

While the state constitution gives the school board general supervision, it also says that “the Legislature shall provide, by general law, for a thorough and efficient system of free schools.”

The state constitution doesn’t give an executive agency carte blanche to decide its own rules without Legislative oversight, argued Michael Williams, an Attorney General lawyer representing the Secretary of State. He said ultimately, the Legislature gets the final say.

“This court has held that it lets the Legislature regulate how duties are performed, so long as it doesn’t abolish the office or empty out its functions,” Williams said.

Williams said the new law differs from the 1988 law in that it gives legislators a chance to approve, amend or reject the proposed rules, but if they don’t vote on the rule within 15 months, it is automatically approved. In the previous law, if legislators didn’t vote on a rule it was rejected.

Attorney Chris Smith, representing the state Board of Education, argued that the constitution gives the school board general supervision over schools, and that the state’s Supreme Court had already decided this in the 1988 case in the Board of Education case against Hechler.

Smith said the previous case means that one branch of government can’t give itself veto power over another’s power.

“That’s basic separation of powers principles,” Smith said.

Justice Charles Trump, a former state senator, noted that the Legislature always has the option to pass a law that would override a rule by the school board.

Smith acknowledged that point, but said the exception there is that the Legislature just can’t touch rulemaking.

“It’s not always the most efficient route to comply with the Constitution, but it’s what the voters wanted,” he said.

Disclosure: The law firm Bailey & Glasser represents the state Board of Education in this case. One of the firm’s co-founders, Ben Bailey, is chairman of Mountain State Spotlight’s board of directors.

This story was originally published by Mountain State Spotlight and distributed through a partnership with The Associated Press.