March 10, 2017 - Volume 37 Issue 6


By Rick Boothby, Esq. 


Q:  Nearly all West Virginia school boards, by policy, require the administration to seek board approval before posting any new service or professional positions. Does a school board have total discretion in deciding whether or not to approve these proposed new positions?

A:  In many, perhaps most, cases the answer is yes. However, West Virginia law imposes various staffing requirements, including maximum class size/teacher-pupil ratios for elementary schools and maximum caseloads for special educators. To comply with these laws, it may become absolutely necessary to fund additional positions. Similarly, when an IEP Team determines that additional staff members are necessary to provide a special education student with a free appropriate public education (FAPE), a school board has little choice but to comply.  Failing to comply can and does result in parents filing due process complaints with the state Department of Education.  When parents substantially prevail in these due process complaints, the school board becomes responsible for paying the parents’ attorney fees. 

West Virginia Laws

West Virginia Code 18-5-18a contains maximum teacher-pupil ratios for classrooms in grades kindergarten through sixth grade.

The state board of education has also limited the number of students who can be served by certain special education teachers. These limitations are found in state board Policy 2419 on pages 65 and 66.

Federal Laws and the Supremacy Clause

When federal laws conflict with state laws and provide greater protections to affected persons than state laws, the federal laws must be followed. This is because of the so-called Supremacy Clause found in the United States Constitution.  The Supremacy Clause, found in Article VI, Clause 2 states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

In short, this means that all federal laws and treaties are to be followed even when they conflict with state law. (The one exception to this rule is that when a state law provides more protection to persons than federal law, the state law will be followed.)  The federal Individuals with Disabilities Education Improvement Act of 2004 (IDEA) and its West Virginia counterpart, State Board Policy 2419, empower school IEP Teams to make decisions about the provision of education and related services to certain children with disabilities. The central requirement of this law is that schools provide covered special education students with an FAPE.  Among other things, this means that the child has a written IEP that is reasonably calculated to provide the child with some educational benefit. If an IEP Team determines that, for example, the services of a classroom aide are necessary to provide a student with an FAPE, then an aide must provide those services. Oftentimes, a current employee can be reassigned to provide these services. But if it is necessary to hire a new aide in order to comply with the IEP Team’s decision, that hire must occur. To override the decision of the IEP Team in such a situation could, and likely would, result in expensive litigation, a complaint with the Office for Civil Rights, and/or civil litigation in the courts.  

School boards presented with a request for additional staff due to compliance with the IDEA/Policy 2419 may inquire and explore whether these services can be provided by existing staff, rather than hiring a new employee.

Rick Boothby is a partner in the law firm Bowles Rice, LLP, and a former public school teacher. He currently serves as chairman of the West Virginia State Bar Association’s Education Law Committee. He has made numerous presentations to West Virginia School Board Association members, county superintendents and school administrators.