WV state school board asks where Legislature's power ends, and its begins

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By Ryan Quinn, Charleston Gazette-Mail

West Virginia Board of Education members asked Wednesday about legal issues regarding rejecting orders that state lawmakers give them.

The discussion came after lawmakers repeatedly have tried to pass major curriculum changes in recent years and as they consider other substantial changes to education in the upcoming special legislative session.

“We’re concerned possibly with the encroachment of the Legislature,” said state school board President Dave Perry.

Kelli Talbott, senior deputy attorney general, spoke of the board’s substantial power.

That power comes from the West Virginia Constitution and has been upheld by the state Supreme Court. Those sources of authority may override laws the Legislature passes.

But, as was noted Wednesday, the high court’s makeup has drastically changed since the court’s recent impeachment controversy.

Perry asked if the board could, theoretically, sue the Legislature.

“I’ve often heard the saying that the Legislature can’t be sued,” Talbott said.

“We’ve heard that, too,” Perry said.

Talbott said she didn’t know the answer to that, or whether there could be some sort of action against another defendant.

Perry also asked, “If we feel they haven’t adequately funded a free and thorough education, in our opinion, relevant to the state aid [school funding] formula, then what standing would we have?”

“You have the standing to be a litigant,” Talbott said. “The thing that would have to be sorted through, from a lawyer’s perspective, is who would you sue?”

Talbott, who has worked on legal issues for the board since the early 1990s, said there’s no specific case where the Supreme Court has said “this is what the Legislature can do in general law with regard to education.”

“There’s not a bright line between the Legislature’s authority to pass general law and then your authority under the constitution to supervise the free schools,” Talbott said.

The first line under the constitution’s education section says, “the Legislature shall provide, by general law, for a thorough and efficient system of free schools.”

But the very next line says, “the general supervision of the free schools of the State shall be vested in the West Virginia board of education which shall perform such duties as may be prescribed by law.”

Board member Debra Sullivan asked, “Who has the constitutional authority over curriculum, assessment, instruction, instructional materials, teacher preparation?”

“I think that’s often a difficult question,” Talbott said. “I don’t know how a court would come down on that issue.”

“If the Legislature were to pass,” Sullivan continued, “and I’m going to think of something totally ridiculous here — that students should be armed in classrooms, and we said, ‘No, we’re not going to put that into our policy,’ what happens?”

“Boy,” Talbott said. “That would be a constitutional impasse, I would think, between the Legislature and the board, that most likely would end up in court somehow, I would think, and the court would have to sort that one out.”

Talbott represented the board in the 2017 Nicholas County school consolidation case, in which the Supreme Court upheld the board’s right to reject the Nicholas Board of Education’s originally approved consolidation plan.

In that ruling, justices wrote that “this Court has unequivocally held that legislative action that impedes the general supervisory powers of the [state school board] is patently unconstitutional,” although justices said a Legislature v. state school board power battle wasn’t the real issue in that case.

State schools Superintendent Steve Paine said he never would have thought about the justices’ political persuasions and the “composition of the court” until recent events.

“Throughout my experiences here, since 2003, I would’ve banked on the fact that the court had always upheld the state board’s authority,” Paine said. “You wonder if that past precedent still prevails with a new court.”