History repeating itself? WV BOE defies new state law during special meeting

By Autumn Shelton, RealWV

CHARLESTON, W.Va. – The state Board of Education (BOE), on Monday, voted to move forward with a statewide school bus policy without first having it reviewed by a legislative committee. Monday’s decision comes on the heels of a May board vote in favor of pursuing litigation against what members believe to be the unconstitutionality of WV House Bill 2755.

On April 12, 2025, the West Virginia Legislature passed House Bill 2755. This new law, which took effect on July 11, requires the state BOE to submit any new policy to the Legislature through the Legislative Oversight Commission on Education Accountability for review. From there, the committee may approve, reject or amend any policy created by members of the state BOE.

However, according to BOE General Counsel Kelli Talbott, this bill is in direct conflict with Article XII of the West Virginia Constitution, which gives the BOE supervisory authority over the state’s public school system. 

Talbott explained the bill’s conflict and counsel’s recommendation that the BOE move forward with passage of Policy 4334, regarding design and equipment requirements for school transportation vehicles, despite the legislature’s new law.

“We’re proposing that this rule go into effect 30 days upon filing, not after it goes through the full Legislature for an effective date,” Talbott explained. “Of course the Board’s position is and has been that the bill, House Bill 2755, is unconstitutional. Indeed, you guys will recall during the Legislative Session that there were legislators and legislative counsel who said that as much on the floor, and during committee meetings admitted that it was unconstitutional.” 

During the House Floor Session on March 20 to discuss the bill prior to its ultimate passage, the bill’s lead sponsor Del. Mike Hornby, R-Berkeley, stated that this bill’s intent is to place the state Department of Education under legislative rules. 

“The point of this bill is to make our education system better, which is what we’re here for,” Hornby stated. “We have a broken system . . . so with us being in charge of rules and helping and working with the Department of Education, we can actually get things done. Right now, we can’t.” 

Del. Mike Pushkin, D-Kanawha, responded to Hornby by stating the bill is unconstitutional, denied the will of the voters, and “will wind up in court.” 

Despite this warning from Del. Pushkin, the bill did ultimately become law, although it did so without Gov. Morrisey’s signature.

In addition to mentioning prior legislative discussion during the BOE’s special meeting on July 14, Talbott stated that the West Virginia Supreme Court already decided the matter regarding BOE policy decisions and legislative oversight back in the 1980s. 

“In 1988, the legislature passed a bill that looks just almost like House Bill 2755, and the state board did the same thing that it’s effectively doing today – it voted to file this very policy on school bus design and equipment with the Secretary of State in contradiction to that bill,” Talbott explained. “The Secretary of State, in 1988, refused to file the rule because of the legislation that was passed at that time and the state board brought legal action as a result of that in 1988.” 

Referring to the landmark case West Virginia Board of Education vs. Secretary of State Ken Hechler, Talbott said that the Supreme Court held that the passed bill violated the state’s constitution, which gives the WV BOE general supervisory authority. 

In the case, the WV BOE asked the court to direct Hechler, in his capacity as Secretary of State, to file the new policy submitted by the Board. The court declared that the Board’s request to file the rule was a “proper remedy” for litigation resolution.

But, that wasn’t the end of the story.

“In the wake of Hechler, the legislature proposed to amend the constitution in 1989 to effectively take the state board out of the constitution,” Talbott continued. “Therefore its rules would not have the constitutional dimension that they have.” 

However, Talbott said that when the ballot measure to amend the state’s constitution went before the state’s voters that same year, it was defeated by a 90% margin. 

Again, in 2022, a similar ballot measure was defeated by a 58% margin, Talbott noted, referring to a rejected proposed Constitutional Amendment, the Education Accountability Amendment, which would have required legislative approval for BOE rules and policies. 

“So, now, here we are today,” Talbott continued. “This year, the legislature passed House Bill 2755 and ignored Hechler, ignored the vote that was taken in 2022, and it’s our position that you should vote to file this rule with a 30-day effective date with the Secretary of State so that we can pursue the next steps in this process.” 

In a unanimous decision, 9-0, the BOE voted to approve Policy 4334 and file the policy in the same manner with the Secretary of State’s Office as they have always done. 

It is now up to current Secretary of State Kris Warner to decide whether or not to file the rule, and on the WV BOE to decide whether or not to file a suit against his office if he chooses not to file the rule – just as happened in West Virginia Board of Education vs. Hechler more than 30 years ago. 

“I think there’s no need for me to say anything further on the matter,” said newly elected BOE President Paul Hardesty following the Board’s vote. “I think counsel explained it very eloquently, and I appreciate that. Plus, anything further that I would say on this matter at this time would be pure opinion and speculation, and neither of these have any merit.” 

The BOE will hold their next meeting on August 13. 

RealWV will provide updates as they become available.