photo by: W.Va. Legislative Photography
State Senate Education Committee Chairwoman Amy Grady, R-Mason, said the voters have already spoken on whether lawmakers should have the ability to approve education rules and they said no.
CHARLESTON — Following the lead of the West Virginia House of Delegates, the state Senate passed a bill Wednesday to put rule-making approval for rules and policies developed by the state Board of Education in the hands of lawmakers, but the bill has state constitutional issues.
The Senate passed a committee substitute to Senate Bill 705, allowing the state Board of Education to promulgate rules for submission to Legislature, in a 19-15 vote Wednesday, sending the bill to the House of Delegates nearly a week after the House passed a similar bill.
SB 705 would require that all legislative rules enacted by the board must first be authorized by the Legislative Rule-Making Review Committee. The proposed rules would then be submitted to the full Legislature for review, which could result in approval, amendment, or rejection.
“This is good legislation that ensures accountability under the Legislature’s primacy of authority provided by the West Virginia Constitution,” said Senate Judiciary Committee Vice Chairman Tom Willis, R-Berkeley, the lead sponsor of the bill.
SB 705 is similar to House Bill 2755, but that bill would instead send proposed rules by the state Board of Education to the Legislative Oversight Commission on Education Accountability (LOCEA), 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.
Article 12 of the West Virginia Constitution states that “the Legislature shall provide, by general law, for a thorough and efficient system of free schools,” and places the supervision of the school system with the state board “…which shall perform such duties as may be prescribed by law.”
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 was ruled unconstitutional.
“This is blatantly unconstitutional legislation and this idea that the Legislature can take any moment in the rulemaking authority of the Department of Education, this has been decided,” said state Sen. Joey Garcia, D-Marion. “This bill really does nothing other than try to dig up a fight in the courts which we don’t need which will fail.”
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.
“When Amendment 4 was on the ballot, I wrote…an op-ed talking to the voters about why it was important to pass that amendment,” said Senate Education Committee Chairwoman Amy Grady, R-Mason. “I truly wholeheartedly believed in that amendment. I think it’s important. But I don’t think doing this is the same thing. I think that this sends the wrong message to our voters. I think it tells them that we think they got it wrong and we’re going to do it anyway.”
