Lawyers made their cases in the Supreme Court of Appeals of West Virginia Tuesday afternoon about how the legislature’s oversight of education will be executed.
Passed in 2025, House Bill 2755 requires Board of Education policies to go through the Legislative Oversight Commission of Education Accountability, and the full legislature for approval, rejection or modification before those policies can become effective.
The board has maintained that such oversight is unconstitutional. That argument is strongly bolstered by the 1988 state Supreme Court ruling in West Virginia Board of Education v Heckler, which maintained that statutory provisions that interfere with the board’s rulemaking authority are unconstitutional.
Del. Mike Hornby, R-Berkeley, and the bill’s lead sponsor, told his colleagues in the House Education Committee in 2025 that he introduced the bill in part to invite legal action. Hornby said he believed the Heckler decision was made in error and code does allow for legislative supervision of state schools.
A ballot initiative in 2022 to change the state constitution to allow for legislative oversight of the board failed.
Chris Smith, attorney for the board of education, conceded that the legislature does maintain an oversight of the board.
“This is not a case saying the legislature can’t do anything or that the legislature has no powers,” he said. “This is a case saying that the legislature cannot wrest from the board of education its rulemaking powers.”
Smith pointed out that the Legislature can and does regularly pass educational initiatives that it wants to see done. He conceded that such laws do supersede the board’s rule-making authority and pointed to the recent food dye ban as an example.
Michael R. Williams, solicitor general of West Virginia, argued that HB 2755 doesn’t seize the board’s rulemaking power, but merely gives the legislature one regular session to decide whether to legislate.
He pointed out that the legislature’s obligation to provide by general law for the free schools is the very first line of Article 12 of the state constitution. That supersedes the general supervision of state schools being delegated to the board in Section 2.
“In Article 12, Section 2 doesn’t forbid that, seeing as how the board shall perform such duties as may be prescribed by law,” Williams said. “For every constitutional office that carries that phrase, 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. House Bill 2755 comes nowhere near that line.”
In rebuttal, Smith argued that the legislature had already contradicted Williams’ argument.
“The court doesn’t have to guess about that. In the newly passed West Virginia Code 29A-3B-1, the legislature stated that the law passed by House Bill 2755 establishes the legislature as the ultimate authority to approve, amend, or reject rules promulgated by the West Virginia Board of Education,” he said. “This is not an attempt to aid the board. This is an attempt to give the legislature a veto power over the board.”
It was not immediately clear when the state supreme court would release a decision.
