Three years ago, West Virginians rejected a constitutional amendment that would have given the legislature authority to review and approve the state Board of Education’s rules and policies, leaving the board’s current constitutional authority intact.

The proposed amendment on the November 2022 ballot was defeated by a 58%-42% vote.

Now lawmakers are taking aim again at authority over West Virginia educational policies, running legislation explicitly on a collision course to be decided not by the citizens but ultimately by judges in the state’s courts system.

The conflict is being played out on the battlefield of education rules and regulations, but who has authority is an important question at a moment when the U.S. Department of Education is on track for dismantling.

The House of Delegates last week passed HB 2755 , requiring that all legislative rules enacted by the state board must first be authorized by the Legislative Oversight Commission on Education Accountability, which lawmakers call LOCEA. The proposed rules would then be submitted to the full Legislature for review.

Senators have been advancing a similar bill, SB705, which was reviewed by the Judiciary Committee last week.

Senate Minority Leader Mike Woelfel, D-Cabell, questioned the wisdom of running a legislative policy that the citizens rejected in a direct vote. He said he will be a no vote in the Senate.

“I don’t think there’s any reason to question what the voters said in the referendum three years ago. We’ve got to be cautious here and circumspect about overreach by politicians into fundamental education policy,” Woelfel said in an interview outside the Senate chamber.

“Yes, we have a certain level of oversight, but there’s a reason the voters rejected that proposed amendment, which would have really inserted the politicians, the Legislature, into the day-to-day operations of the state Board of Education on policy.”

The effort by legislators to take more control of state education policies not only runs up against the recent vote by the citizens, but it also runs in conflict with long-established precedent following state court reviews.

This issue was considered in 1988’s West Virginia Board of Education vs. Hechler , referring to then-Secretary of State Ken Hechler, whose office was being asked to file rules approved by the board.

The case developed after in June, 1988, lawmakers established the Legislative Oversight Commission on Education Accountability. The state board then, as is being considered now, was directed to submit its approved legislative rules to the oversight commission for review.

Under the 1988 policy, if the legislature would fail to act on a rule submitted to it by the oversight commission, then the state board would have been prohibited from taking any action on the rule “unless and until otherwise authorized to do so.”

That August, the board adopted a rule called “West Virginia Minimum Requirements for Design and Equipment of School Buses” and sent it to be filed with the Secretary of State. That request was rejected, based on the state board’s failure to comply with the newly enacted provisions of the Administrative Procedures Act.

The state Supreme Court, reviewing the situation, concluded that the Board of Education has “general supervision” of state schools under the Constitution and that any statutory provision that interferes with such rule-making is unconstitutional.

“Decisions that pertain to education must be faced by those who possess expertise in the educational area. These issues are critical to the progress of schools in this state, and, ultimately, the welfare of its citizens,” the Supreme Court concluded in an order written by then-Justice Thomas McHugh.

As state lawmakers debated the matter last week, in the year 2025, they acknowledged that case but suggested the court system might see it differently this time.

In the Senate Judiciary Committee, where there was about an hour of discussion , the state board’s general counsel said the division of responsibility between the Legislature and the state board is long-established.

“It’s part of the fabric of our case law in West Virginia about public education, and we do not lack for West Virginia Supreme Court case law on this issue,” said Kelli Talbott, the main attorney for the state board.

Talbott described policy interplay between the Legislature and the state Board of Education, but she said, “I don’t believe that one is supreme over the other. In that respect, they each have different responsibilities under the Constitution.”

The state Board of Education includes 9 citizen members appointed by the governor with the advice and consent of the state Senate. Board members serve overlapping terms of nine years, and no more than five citizen members may belong to the same political party.

Talbott noted that citizens have been given recent opportunities to change how the state Constitution awards authority over education policies, but “the voters have rejected the idea that somehow state board rule making should fall in any manner under the Legislature.”

Senator Tom Willis, R-Berkeley, acknowledged the current bill creates “friction” with existing court precents, but he suggested another review by the courts might interpret the constitutional balance differently. He said this bill is drafted differently from the one knocked down years ago.

“The Board of Education can make rules, but those are subject to legislative oversight, and so that’s so I acknowledge that there’s friction, but as drafted, I feel this, this bill is constitutional,” Willis said. “I have no doubt that it’ll be challenged, but that’s the that’s the rationale behind it, the tent behind it.”

Willis noted that the court in 1988 described issues critical to the progress of schools in this state and ultimately the welfare of its citizens.

“How have we done on the progress of education in this state since 1988? These issues are critical to the progress of schools in this state,” Willis said.

“I think the fact that we’ve allowed an unaccountable board run education for nearly the past 40 years is exactly why we’re still ranked 49th, 50th in education year after year after year, and something has to be done to rescue our children from this horrible situation.”

Senator Joey Garcia, D-Marion, said citizens had an opportunity at the ballot box to change who has ultimate authority over education policies. And he noted the case law already establishing precedent on the question.

Pushing through a new law, he said, “is political malpractice. That is tone deafness to the idea that the people don’t want this. They don’t want this political politicization of the education rules that we have.”

He continued, “Everything we are doing right now is a complete and utter waste of time because it is not constitutional. It has no possibility of being constitutional.

“And this bill is going to fail, whether it’s now, whether it’s in the circuit court, or whether it’s five years from now, from the Supreme Court of West Virginia.”

A similar argument played out last week in the House of Delegates as the bill was up for a passage vote in that chamber. Delegate Mike Pushkin, D-Kanawha, asked a series of questions to the legislation’s main sponsor, Delegate Michael Hornby, a Republican from Berkeley County.

“Would you agree that, according to Board of Education versus Hechler, that this would would be considered unconstitutional?” Pushkin asked.

“Well,” Hornby responded, “I think Supreme Court has gotten decisions wrong before, so I’d like to revisit that.”

Pushkin slightly changed how he asked the question, and Hornby then responded, “Some people could think it would be unconstitutional. I don’t.”

Pushkin then asked, “So is the point of this bill to go back to court and get another ruling?”

“No,” Hornby said, “the point of this bill is to put the Department of Education under legislative rules. The point of this bill is to make our education system better, which is what we’re here for.”

Pushkin followed up by asking, “Would you agree that this question was on the ballot in ’22?”

Hornby’s response included context that four statewide ballot measures were on ballots that year. One in particular, a measure allowing machinery, equipment and inventory used for business activity to be exempt from property taxes, became a hot button issue, with then-Gov. Jim Justice barnstorming the state in opposition.

Voters rejected all four measures.

“This question was on the ballot, but there was political things happening with our previous governor that affected the passage of this bill,” Hornby said.

As debate progressed in the House, Delegate Larry Kump rose and punctuated the dilemma.

“Great googly moogly. This is a difficult vote for me,” said Kump, a Republican from Berkeley County.

“I certainly, absolutely agree with the intent of this bill. However, as it has been pointed out, the Supreme Court has ruled and the voters have decided in the constitutional amendment that this is not the way to go, so therefore I cannot vote for this bill.”

A few minutes later, Delegates voted 88-12 , in favor of passing the bill. The question of authority over state education policies is now up to the state Senate — and ultimately, again, the courts system.