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February 9, 2018 - Volume 38 Issue 5



“He that would make his own liberty secure,  must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”   -   Thomas Paine  (1737- 1809), English-born American political activist, philosopher, political theorist, and revolutionary.


By Mike Myer

Most school districts have built enough space into their calendars that they should have no trouble meeting the state’s requirement for 180 days of instruction this year. But what if it continues to snow? What if some counties ask the Legislature to exempt them from the 180-day rule?

They’d better be calling the West Virginia Board of Education, too. Because if the board says no exemptions, it doesn’t matter how legislators feel.

In fact, the Legislature does not control public schools in our state. The state BOE does. The West Virginia Supreme Court says so.

Surprised? I was. The state constitution states, in what I thought was reasonably clear language, that, “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.”

The constitution also states, “The Legislature shall provide, by general law, for a thorough and efficient system of free schools.”

It’s that “as may be prescribed by law”that seems to vest authority in the Legislature. We don’t call them “lawmakers”for nothing.

It is being suggested that lawmakers seek a constitutional amendment regarding how members of the state board are chosen. Currently, nine are appointed by the governor. Three are statutory, non-voting members (state school superintendent and chancellors of the higher education and community college systems). Some legislators think voters, not the governor, should name members of the state board.

But included in the proposed constitutional amendment is a far more important change. If adopted, it would give authority over schools back to the Legislature.

Lawmakers don’t have it now, according to the high court. Justices reiterated that last fall in ruling on a dispute over consolidation of schools in Nicholas County.

In a nutshell, the justices said that “(r)ule-making by the State Board of Education is within the meaning of ‘general supervision’ of state schools pursuant to … the West Virginia Constitution, and any statutory provision that interferes with such rule-making is unconstitutional.”

The court emphasized the point, noting “this Court’s veneration of the extensive sweep of the WVBOE’s constitutional supervisory authority.”

You want more? How about this: ” …the WVBOE’s constitutional supervisory powers are both broad and impervious to legislative impairment …”

Impervious? Wow.

Republican legislators — more on that in a moment — are pushing for an amendment to the constitution that has received a great deal of media attention. Interest seems to have been focused on a proposal that the nine voting state board members be elected, not appointed by the governor. That certainly would be a big change.

It pales in comparison to another section of the proposed amendment, however. It would add a line to the constitution, stating that, “In the performance of its supervisory duties, the West Virginia Board of Education may promulgate rules which shall be submitted to the Legislature for its review and approval, amendment or rejection, in whole or in part, in the manner prescribed by general law.”

In other words, lawmakers, not the BOE, would control public schools in the Mountain State.

Interestingly, the proposed amendment was approved by the House of Delegates Education Committee — on a party-line vote of 13-8. Every Republican present voted yes. Every Democrat said no.

Republicans control both houses of the Legislature, but to put a constitutional amendment proposal before voters, two-thirds of the members of each house must agree. The Republican-Democrat split is 22-12 in the Senate and 64-36 in the House — so if the Democrats vote as a bloc, the idea goes nowhere.

If it dies, it will be an indication that some lawmakers don’t want a public debate over control of schools in our state — and that, in itself, would say a great deal.

Editor’s Note: Mike Myer can be reached at mmyer@theintelligencer.net. He is political Columnist for the Wheeling Intelligencer/News Register.

This article appeared in the February 8, 2018,  issue of the Parkersburg News and Sentinel.

Editor’s Note: House Joint Resolution 103, which would accomplish the above objectives if voters approach a constitutional amendment to that effect, has been adopted by House Education and referred to House Judiciary. Here is the West Virginia Legislature’s Bill Status link to the Resolution - http://wvlegislature.gov/Bill_Status/bills_text.cfm?billdoc=hjr103%20intr.htm&yr=2018&sesstype=rs&i=103&houseorig=h&billtype=jr

Used by permission.