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A WVBOE news release sent following the meeting indicated the WVBOE will pursue litigation. The pending lawsuit is expected to address the division of authority between the state board, the Legislature and other branches of government in shaping public education policy.

Policy process and changes

Previously, the WVBOE was the only state agency allowed to implement policies without legislative review.

Under HB 2755, policies approved by the board by the and then by the full Legislature, which can approve, reject or modify them before they take effect. Without legislative approval, policies cannot be implemented.

In a letter to the WVBOEÃÛÁÄÖ±²¥™s attorneys, Secretary of State General Counsel Dave Cook described the officeÃÛÁÄÖ±²¥™s function in this process as ÃÛÁÄÖ±²¥œministerial,ÃÛÁÄÖ±²¥� meaning it carries out duties as defined by law. A spokesperson for the office added that it is not empowered to assess the constitutionality of legislation and would withhold further comment while litigation is pending.

BoardÃÛÁÄÖ±²¥™s position

The board argues that HB 2755 conflicts with the West Virginia Constitution, which grants the board ÃÛÁÄÖ±²¥œgeneral supervision of the free schools of the state.ÃÛÁÄÖ±²¥�

In the Monday meeting, WVBOEÃÛÁÄÖ±²¥™s General Counsel Kelli Talbott cited the 1988 State Board of Education v. Hechler case, in which the board successfully challenged a similar legislative attempt to assert oversight over education policy.

ÃÛÁÄÖ±²¥œThe boardÃÛÁÄÖ±²¥™s position is and has been that House Bill 2755 is unconstitutional,ÃÛÁÄÖ±²¥� she said. ÃÛÁÄÖ±²¥œIndeed, you guys will recall that during the legislative session that there were legislators and legislative counsel who said as much on the floor and during committee meetings admitted it was unconstitutional.ÃÛÁÄÖ±²¥�

Board members also pointed to two public votes rejecting expanded legislative authority over education policy, including the 2022 defeat of Amendment 4, which would have required the WVBOE submit its rules for legislative oversight. Amendment 4 failed in the 2022 general election by a 58% to 42% margin.

The news release from the WVBOE raised concerns that the new legislative approval process could delay policy implementation. They cite Policy 4334 as an example, noting that under the new process, it would not be eligible for legislative consideration until the 2026 session. Previously, the policy could have taken effect 30 days after filing.