Three years ago, West Virginians were asked to give lawmakers more control over the day–to–day operations of the state’s public schools.
Teachers unions, county superintendents and the state Board of Education opposed the proposed constitutional amendment, saying that it would inject politics into classrooms.
West Virginians soundly rejected the amendment. Fifty-eight percent of voters were against it.
Now, the House is advancing legislation designed to give the state Supreme Court a chance to overrule voters and toss out decades of legal precedent that says education experts, not politicians, run the schools.
The bill would specifically give lawmakers the final say on education rules.
Often the Legislature passes laws and leaves it to the agency to figure out the details. Then, the details have to be approved by lawmakers.
The notable exception is the state Board of Education, which decides everything from on which side of the road students walk to meet the bus to how checks are signed. (Walk on the left and sign the check by hand, in most cases).
In 1958, voters gave the board independent power to run the schools. The state Supreme Court upheld this in 1988, writing that the board enjoys “a special standing” under the state constitution.
“Decisions that pertain to education must be faced by those who possess expertise in the educational area,” wrote then-Chief Justice Thomas McHugh. “These issues are critical to the progress of schools in this state, and, ultimately, the welfare of its citizens.”
At the time, all five justices were Democrats. Now, judicial elections are nonpartisan but the court has four conservative members.
Del. Mike Hornby, R-Berkeley, the bill’s lead sponsor, said he believes that lawmakers should have more accountability over how the state’s schools are run.
“We’ve seen a complete overhaul of state government, and I think it’s time to challenge that decision,” he said.
On Wednesday, Hornby stood at a podium in a House Education Committee meeting and acknowledged that the bill he is proposing is unconstitutional under the 1988 ruling.
“I think the decision was wrong,” he said.
You’re going to pass this bill anyway and see if the courts will overturn it, asked Del. Mike Pushkin, D-Kanawha.
“Is that the point of this bill?”
“Yeah,” Hornby said. “If we’re being honest, yeah.”
Pushkin pressed further: Who overrides a decision by one of the three branches of government?
“The voters,” Hornby said.
“And they had the chance to vote on this a couple short years ago and resoundingly defeated it,” Pushkin asked. “That doesn’t concern you?”
“No, it doesn’t concern me,” Hornby said.
The Eastern Panhandle had the strongest support for the amendment and he said his constituents there are still asking for it.
Hornby said the education amendment at least partly fell victim to being on the ballot with a property tax measure that was defeated after then-Gov. Jim Justice barnstormed the state to oppose it.
“If they understood what they were voting for, and if they weren’t told by somebody not to vote for it, they would have passed this overwhelmingly,” Hornby said.
Senators have introduced a similar constitutional amendment this session but not taken it up yet.
“I think however we get there is best,” Hornby said in an interview.
Repeatedly, voters and courts have said that schools should be run independent of politics.
Prior to 1958, the state superintendent was an elected position. Voters approved a change to the West Virginia constitution that made state board members appointed by the governor to nine-year terms. The board hires the superintendent.
In the 70s and 80s, the state Supreme Court ruled that education is a fundamental constitutional right, leading to the creation of the school aid formula that still determines funding today. And in case after case, it has upheld the board’s power to decide how schools are run.
In 1989, Democratic Gov. Gaston Caperton asked voters to give him control of the board and the superintendent. West Virginians voted by a margin of nearly 9 to 1 not to do so.
On Friday afternoon, delegates trickled into the House Education Committee room. The midday sun illuminated the room as lawmakers swapped weekend plans.
Moments before a party-line vote to advance the bill to the House floor, Pushkin asked a committee lawyer about the 1988 ruling.
“By that opinion of the Supreme Court, this bill is unconstitutional?” he said.
The lawyer replied, “Yes.”
Correction, March 18, 2025: This story has been updated to correct how students should get to a bus stop.