The full West Virginia Senate, by the time the regular legislative session ended Saturday night, never took action on a proposed constitutional amendment that would have let lawmakers amend and reject state Board of Education policies.
Among other things, the state school board’s policies set what students must learn, how they can be disciplined, what specifically is required to become a teacher, and how charter schools are regulated.
Had the full Legislature passed House Joint Resolution 1, the proposed state constitutional amendment would have been put on the ballot in an upcoming election. If approved by voters, the Legislature would have had the final say over all these policies.
The state board, unlike county boards of education, is unelected, and its members serve nine-year terms.
Governors appoint the members, but they must be confirmed by the Senate. Once confirmed, they cannot be removed from office over policy disagreements.
On Feb. 23, the House of Delegates voted 95-2 to pass the resolution. But the full Senate never followed suit.
The Senate Finance Committee, to which the legislation was assigned after Senate Judiciary, waited until April 1 to pass it to the floor of the full Senate.
Once committees pass legislation to the floor of either chamber, the legislation normally receives “readings” in front of all of that chamber’s members, on three consecutive days. On the third day, the chamber votes to pass or reject the measure.
But the full Senate postponed advancing HJR1 for four days this month. As of Saturday, it was scheduled for its third reading in the Senate.
But when it came up around 10:20 that night, the Senate sent it to another committee and began the annual speeches in which lawmakers thank their staff.
The state school board, in a rare public dissent, spoke out against the legislation.
“The learning is going to be inconsistent, it’s going to be inconsistent when you have a Legislature that changes every two years,” board President Miller Hall said March 10. “Where is the consistency?”
The Legislature already controls the statewide budget for education. While lawmakers can amend and reject the policies and rules proposed by other agencies, the state school board currently has a special standing under the state Constitution.
The state Supreme Court of Appeals has interpreted this special standing as exempting the state board from having to submit its policies to lawmakers.
The state board’s constitutional power, as interpreted by the state’s high court in a series of decisions spanning decades, is so great that it may currently be able to defy any education laws the Legislature may pass. But lawyers say this hasn’t been directly tested in court.
Instead, lawmakers annually pass multiple laws affecting education — each chamber even has an Education Committee — and the board routinely changes or adds to its current policies to comply with and flesh out those laws.
Proposed constitutional amendments, even before getting onto a ballot, require approval by two-thirds of the elected members in each legislative chamber.
The House’s 95-2 vote in favor well surpassed that threshold. Delegates Larry Rowe, D-Kanawha, and Tony Paynter, R-Wyoming, were the only no votes. Absent were John Doyle, D-Jefferson; Mick Bates, D-Raleigh; and House Education Committee Chairman Joe Ellington, R-Mercer.
Democrats had expressed more opposition in the Senate. Republicans occupy 23 of the 34 Senate seats, so if all the Democrats had voted no, and just one Republican joined them, the measure would have failed anyway.