Photo Courtesy/WV Legislative Photography Del. Mike Hornby believes the West Virginia Supreme Court of Appeals got it wrong 37 years ago and prevented the Legislature from approving rules approved by the state Board of Education.

CHARLESTON — Several bills making their way through the legislative process this year seek to place the rule-making authority of the West Virginia Department of Education in the hands of lawmakers despite a higher court ruling preventing the Legislature from exercising this authority and a failed constitutional amendment.

The House of Delegates passed two bills Thursday – House bills 2755 and 2548 — and the Senate Judiciary Committee recommended Senate Bill 705 to the full state Senate.

HB 2755, providing that the state Board of Education may promulgate rules or policies to be submitted to the Legislature for review, passed the House Thursday afternoon in a 84-12 vote.

The bill would amend State Code regarding the rule-making authority of the state Board of Education, requiring that all legislative rules enacted by the board must first be authorized by the Legislative Oversight Commission on Education Accountability (LOCEA). The proposed rules would then be submitted to the full Legislature for review, which could result in approval, amendment, or rejection.

“The point of this bill is to put the Department of Education under legislative rules,” said Del. Mike Hornby, R-Berkeley, the lead sponsor of HB 2755. “The point of this bill is to make our education system better, which is what we’re here for. We have a broken system…With us being in charge of rules and helping and working with the Department of Education, we can actually get things done. Right now, we can’t.”

House Education Committee Chairman Joe Ellington, R-Mercer, cited Article 12 of the West Virginia Constitution, which states that “the Legislature shall provide, by general law, for a thorough and efficient system of free schools, and placing the supervision of the school system with the state board “…which shall perform such duties as may be prescribed by law.”

“It doesn’t say they make the law. They shall perform such duties as may be prescribed by law,” Ellington said.

SB 705 is similar to HB 2755, but that bill appears to instead send proposed rules by the state Board of Education through the Legislative Rule-Making Review Committee, which would then submit proposed rules to the full Legislature for an up-or-down vote.

Under current law, the Legislature provides oversight of the rules developed by the Department of Education and approved by the state Board of Education, but LOCEA only has the authority to make recommendations to the Legislature for statutory changes to state law but no direct authority to approve or reject rules approved by the state board.

In a 1988 decision by the West Virginia Supreme Court of Appeals in West Virginia Board of Education v. Heckler, the high court determined then that a 1983 law requiring legislative approval of state board rules unconstitutional.

“…We hold that rule-making by the State Board of Education is within the meaning of “general supervision” of state schools pursuant to…the West Virginia Constitution, and any statutory provision that interferes with such rule-making is unconstitutional,” wrote the late Chief Justice Thomas McHugh.

“I think the Supreme Court has gotten decisions wrong before, so I’d like to revisit that,” Hornby said during Thursday’s debate on HB 2755.

“I just want the members to know what you’re voting on,” said Del. Mike Pushkin, D-Kanawha, who opposed the bill. “According to this Supreme Court case, this is clearly unconstitutional. It will wind up in court.”

In 2022, the Legislature adopted a joint resolution to place on the general election ballot Amendment 4, clarifying that “the policy-making and rule-making authority of the state Board of Education is subject to legislative review, approval, amendment, or rejection.” The constitutional amendment failed in a 58%-42% vote in November 2022.

“(The people) had this question on the ballot just a few short years ago and overwhelmingly defeated it,” Pushkin said. “If you would like to change the Constitution to allow for rulemaking authority back under the Legislature…the proper way to do it would be to pass a resolution to place it back on the ballot and let the voters decide again. Not for us to ignore the will of the voters.”

Three Republicans voted with the nine-member House Democratic caucus against HB 2755, including Del. Larry Kump, R-Berkeley.

“This is a difficult vote for me,” Kump said. “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.”

Hornby pointed out the four Eastern Panhandle counties voted in favor of Amendment 4 — Hampshire, Morgan, Berkeley, and Jefferson. He believes the vote on the amendment failed due to the turnout opposing a separate constitutional amendment that failed in the 2022 election — Amendment 2 — that would have given the Legislature the authority to reduce or eliminate tangible personal property taxes. Former governor Jim Justice campaigned against Amendment 2 that year.

“This question was on the ballot, but there were political things happening with our previous governor that affected the passage of this bill. My county overwhelmingly understood and voted for it,” Hornby said.

HB 2548 would require the State Superintendent of Schools to report annually to the Legislative Oversight Commission on Education Accountability regarding the implementation of state board rules in each county school district. The bill passed the House in a 96-0 vote Thursday.

County school systems that are found to not be in compliance with state board rules would be subject to a two-tiered system. If a county is found in violation, the State Superintendent must provide a plan to ensure full implementation of the rule and a timeline for being in compliance. If a county continues to be in violation of state board rules, school aid funding could be withheld from that county.

“It’s simply about a reporting requirement and then an enforcement mechanism,” Ellington said. “They have to report and report back to LOCEA and they have to tell what plan of any correction is necessary and then if it isn’t implemented, then it’s up to the Legislature to decide if they’re going to withhold any funding for that county.”