ACLU-WV notifies state officials of intent to sue over ‘unconstitutional’ school funding
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CHARLESTON - More than 44 years ago, a decision handed down by an Ohio County judge led to an overhaul of how West Virginia funds its 55 county school systems. Advocates for better school funding believe a new lawsuit is warranted to fix new disparities.
The ACLU of West Virginia sent a letter Monday to state Attorney General J.B. McCuskey providing a 30-day notice of its intent to file a class action lawsuit against the Legislature, several state elected officials, the Department of Education and state Board of Education members, and the Lincoln County Board of Education.
According to the letter, ACLU-WV Legal Director Aubrey Sparks alleged that state and local officials have neglected their duty to fund a thorough and efficient school system as required by the state Constitution, particularly within Lincoln County.
"While the legal culpability of the systemic neglect of West Virginia's school system has yet to be determined, the moral culpability is clear," Sparks wrote. "Lincoln County students deserve the best possible education that can be provided for them, and they are constitutionally entitled to the funding that permits them a thorough and efficient education."
Significant issues cited by Sparks include dilapidated facilities, severe shortages of certified teachers and inadequate support for special education. Sparks said the lawsuit aims to force the state to rectify these financial inequities and uphold the fundamental rights of students.
While county school systems receive local funding through property tax revenue, bonds and levies, the seven-step school aid formula plays a large role in setting their budgets. However, the school aid formula is reliant, in part, on student enrollment data.
According to this year’s October headcount report, which is used by county school systems to develop budgets for the following school year, there were 234,957 students enrolled in the state’s 55 county school systems, a 2.52% decrease from fall enrollment this time last school year of 241,024 and a 15.32% decrease from the 277,452 fall enrollment number in 2015.
According to data released Wednesday by the state Department of Education, county school systems have seen an additional reduction of approximately 5,000 students as of the end of the 2025-26 school year earlier this year.
Counties are required to submit a 10-year Comprehensive Education Facilities Plan to the Department of Education. The plan includes evaluations and inventory of all existing school facilities, whether a county expects to construct new school facilities, and whether the county expects to close and consolidate school buildings.
According to the Department of Education, counties have already closed all the schools in their proposed 10-year CEFP plans six years in, with between 10 and 20 public schools likely to be closed by counties in the 2026-27 school year.
The state Department of Education finalizes student enrollment numbers every October, which then determines how much money county school systems get from the formula the next school year. Enrollment numbers also factor into the county's facilities plan.
The school aid formula was borne out of a 1982 decision by former Ohio County Circuit Court Judge Arthur Recht after a parent brought a class action lawsuit in 1975 against Lincoln County Schools arguing that poorer rural counties were being disadvantaged over larger, wealthier counties. In her letter, Sparks said matters are far worse today.
"Nearly 50 years ago, the school system was deemed unconstitutionally inadequate," Sparks wrote. "Yet, Lincoln County students today receive a worse education, across many metrics, than their parents and grandparents did before them."
Lawmakers have been told the last several years that the state’s seven-step school aid funding formula needs either scrapped or reformed. According to a RAND Corporation study commissioned by the Legislature and released prior to the start of the 2026 legislative session, while overall state education spending is near the national average, the school aid formula fails to adequately account for the higher costs associated with low-income students and those with disabilities.
Spokespeople for House Speaker Roger Hanshaw, R-Clay, and Senate President Randy Smith, R-Preston, declined to comment and their offices had not yet received the 30-day notice. A spokesperson for the attorney general also declined to comment because the office had not yet received the notice.
State law requires a 30-day notice before filing suit against the state, with all state agency lawsuits filed in the Kanawha County Circuit Court. Other state officials named on the ACLU-WV's 30-day notice include Auditor Mark Hunt, Treasurer Larry Pack and Tax Commissioner Matthew Irby.
The Department of Education, the West Virginia School Building Authority and state Board of Education were also named in the 30-day notice. State Board of Education President Paul Hardesty has been an outspoken advocate for reforming the school aid formula. When reached Monday evening, Hardesty had not seen the letter but said reform was needed one way or another.
"I am not really surprised by their filing of the notice," Hardesty said. "This is my fourth term as president of the West Virginia Board of Education. I have repeatedly asked for help with the current outdated school aid funding formula. To date, I have received none.
"It was litigation that came from Lincoln County 44 years ago that forced the courts to weigh in on the school aid formula," he continued. "Now, that outdated, antiquated funding formula will be revisited once again as a result of this pending litigation from Lincoln County. How ironic."
Steven Allen Adams can be reached at sadams@newsandsentinel.com.