Key Points

  • The Supreme Court of Appeals of West Virginia held that rulemaking by the State Board of Education is within its constitutional 'general supervision' of the free schools and that any statute interfering with that rulemaking is unconstitutional.
  • The court declared unconstitutional the laws enacted by House Bill 2755 (2025), which required the board to submit its rules to the Legislature for approval, amendment, or rejection.
  • The court found the 2025 statutes differed from those struck down in Hechler (1988) only in inconsequential ways and declined to overrule Hechler under stare decisis.
  • The court granted mandamus compelling Secretary of State Kris Warner to accept and publish the board's Policy 4334 in the State Register.
  • Justice Trump dissented, arguing that Hechler wrongly turned a statutory grant of rulemaking power into a constitutional exemption from legislative oversight and should be overruled or narrowed.

West Virginia's Supreme Court of Appeals on Nov. 13 struck down a 2025 law requiring the State Board of Education to submit its rules to the Legislature for approval, holding that the requirement unconstitutionally interferes with the board's authority over the state's public schools.

Justice Kirkpatrick, writing for the court, declined a request by Secretary of State Kris Warner to overrule West Virginia Board of Education v. Hechler, a 1988 decision that struck down an earlier legislative-review scheme. Justice Trump dissented. Justice Flanigan, deeming himself disqualified, did not take part, and Senior Status Justice Elizabeth D. Walker sat by temporary assignment.

The decision declares unconstitutional the laws enacted by House Bill 2755, which amended five sections of the state's Administrative Procedures Act, and leaves the board free to adopt rules without the Legislature's approval. The court granted a writ of mandamus, an order compelling a public official to perform a duty the law requires, directing Warner to accept and publish Policy 4334, the board's design and equipment requirements for school transportation vehicles.

"The practical effect of the laws enacted pursuant to HB 2755 is the same as the statutes at issue in Hechler—the Board must submit its rules to the Legislature for approval prior to enactment," Justice Kirkpatrick wrote.

The dispute traces to a 1958 constitutional amendment that vested "general supervision of the free schools" in the board. That provision, article XII, section 2, also says the board "shall perform such duties as may be prescribed by law." In 1988, the Legislature passed an education package that required the board to apply for legislative permission to issue non-emergency rules and to send its rules to an oversight commission.

When the board then filed a school-bus rule directly with Secretary of State Ken Hechler, he refused to accept it. The court ruled for the board, holding that rulemaking is part of the board's general supervision and that "any statutory provision that interferes with such rule-making is unconstitutional."

Voters later rejected two constitutional amendments on the subject. In 1989, they voted down, 220,286 to 29,776, a proposal that would have abolished the constitutional board and the superintendent's office. In 2022, they rejected, 275,683 to 200,791, House Joint Resolution 102, which would have required board rules to be submitted to the Legislature "for its review and approval, amendment, or rejection."

"Undeterred by the voters' rejection of the constitutional amendment in 2022, the Legislature passed House Bill 2755" in 2025, the court wrote. The law took effect July 11, 2025. Four days earlier, the board's lawyers wrote to Warner calling it "patently unconstitutional" and saying the board "would not be bound" by it.

On July 14, 2025, the board submitted Policy 4334 for publication in the State Register without first sending it to the Legislative Oversight Commission on Education Accountability. Warner's office acknowledged the filing but would not accept it. The board and State Superintendent of Schools Michele Blatt petitioned the high court on Oct. 3, 2025.

Warner argued that the 2025 statutes were "critically different" from those struck down in 1988. Under the new law, a rule takes effect as initially promulgated if the Legislature fails to act within 15 months, while the 1988 law barred the board from taking any action. Warner also argued that the new law, unlike the 1988 version, lets the board issue emergency rules.

The majority was unpersuaded, writing that "the 2025 statutes depart from those we considered in Hechler but in inconsequential ways." It also rejected Warner's claim that the law deferred to the board, pointing to the law's own findings that the Constitution gives the "Legislature primacy of authority over education in the State."

Much of the opinion turned on stare decisis, the doctrine that courts generally follow their own precedents. Warner called Hechler "legally unsound," and the majority found no merit in his arguments. "Hechler has not sat idle since 1988; it has been examined and cited by this Court multiple times in the intervening years, so we have had the opportunity to modify or overrule it before today, but we have not done so," Justice Kirkpatrick wrote.

In dissent, Justice Trump wrote that the 2025 law merely sets procedures for rulemaking power the Legislature itself delegated to the board. Hechler, he wrote, "erroneously transformed a statutory grant of rulemaking authority into a constitutional exemption from legislative oversight, an error that the majority perpetuates here."

The dissent argued that the board's rulemaking power and its exemption from legislative review were always creations of statute. The 1958 amendment, Justice Trump wrote, "was designed and ratified to diminish the influence of partisan politics in the administration of public education within the executive branch, not to transfer lawmaking power from the Legislature to the Board." He wrote that the majority's view "creates a constitutional anomaly: the Board exercises delegated legislative power, yet the Legislature is prohibited from regulating the process by which that power is exercised."

The board had argued that the failed 1989 and 2022 amendments reaffirmed its authority. Justice Trump wrote that the court may not consider such "extraneous matters" in judging a statute. He acknowledged that Hechler had stood for nearly four decades but wrote that time does not "supply a constitutional imprimatur that was absent from the decision's rendering." He would have overruled Hechler or, "at the very least," narrowed it.

Five amicus briefs, including those of Education West Virginia and the League of Women Voters of West Virginia, supported the board. The Cardinal Institute for West Virginia Public Policy filed a brief supporting Warner.

Lawyers for the board included Benjamin L. Bailey of Bailey & Glasser LLP. Warner was represented by Attorney General John B. McCuskey. Jeffrey G. Blaydes of Blaydes Law PLLC represented Education West Virginia as amicus.

The writ compels Warner to accept the board's submission of Policy 4334 and publish it in the State Register. The court noted that state law makes maintaining the register the secretary of state's "nondiscretionary, nondelegable duty," and it found that the board had no other adequate remedy.