Automatic legislative stay invoked in W.Va. school aid formula lawsuit
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CHARLESTON – With legislative interim meetings expected to take up the topic of reforming West Virginia’s complicated and dated school aid formula next week and during next year’s regular session, lawmakers have invoked an automatic stay of a recent lawsuit with state education officials also seeking a delay.
In a filing with the West Virginia Supreme Court of Appeals Wednesday, Senate President Randy Smith, R-Preston, and House Speaker Roger Hanshaw, R-Clay, invoked an automatic legislative stay of a lawsuit brought in September by the ACLU-WV on behalf of Lincoln County families seeking changes to the seven-step state school aid formula. They are represented by the Attorney General’s Office.
West Virginia Code 4-1-17 states that lawmakers and legislative employees are not required to attend to matters pending before tribunals of the executive and judicial branches of government when the timing of those matters may present conflicts with the discharge of the public duties and responsibilities during regular legislative sessions, special sessions, and legislative interim meetings.
Lawmakers will be gathering in Charleston Monday for two days of legislative interim meetings. The case could resume after Thursday, Dec. 10. The automatic stay began Thursday and will end on Saturday, Nov. 14. The stay pauses all proceedings during the time period.
In a separate filing Thursday, the West Virginia Board of Education backed a motion for abeyance filed last week by legislative leadership and other state officials. The parties are seeking a delay in the case until April 12, 2027, following the end of the 60-day legislative session that begins Wednesday, Jan. 13, and ends Saturday, March 13.
Citing West Virginia Code 4-1-17 again, the law pauses all proceedings in lawsuits brought against legislators or legislative staff during both regular and special sessions, including a 10-day period before and 30 days after.
Christopher Smith, an attorney representing state board members, said the abeyance would provide time for Gov. Patrick Morrisey, the Department of Education, and the Legislature to reform the school aid formula during the 60-day regular legislative session Wednesday, Jan. 13, through Saturday, March 13.
“The State Board Respondents agree that this Court should grant an abeyance so that the State Board Respondents, the Legislature, and other stakeholders can work together to fix the school aid formula,” Smith wrote. “Although the State Board Respondents cannot amend the statutory funding formula, they are ready, willing, and eager to work with the Legislature to solve this problem. Inaction is not an option: work must be done to ensure the West Virginia Constitution's promise of public education is fulfilled.”
ACLU-WV filed a petition at the end of September over the school aid formula on behalf of a class of Lincoln County families, seeking an order from the state Supreme Court determining that the Legislature, members of the Board of Public Works, members of the Lincoln County Board of Education and state education and tax officials have violated their constitutional duty to maintain a “thorough and efficient” public school system.
During its October meeting, the state board voted to provide its attorney in the ACLU-WV case with a position paper concurring that "the school funding formula, as it stands, is inadequate and does not provide a thorough and efficient system of education to the students in the public schools in our state." State Board of Education President Paul Hardesty has been outspoken about the need for the Legislature to reform the school aid formula.
During that same meeting, the Department of Education unveiled a draft school aid funding formula overhaul bill it intends to have introduced during the upcoming 2027 legislative session.
The draft legislation would weight funding on additional factors other than just enrollment, tiered by service intensity, low socioeconomic status and poverty, English learners, career and technical education, gifted students, and rurality. Among other features, the proposed bill introduces a funding enrollment mechanism that calculates base funding using the higher of the prior year's second-month net enrollment or a three-year average, shielding districts from abrupt revenue cliffs.
The full cost for implementing the proposed bill will be determined in phase two. But implementing changes to special needs funding could be as high as $190 million. Lawmakers will get their first opportunity to be briefed on the draft bill during next week’s legislative interim meetings, during a Monday meeting of the Joint Standing Committee on Education.
“There may come a day when that relief is warranted; however, that day is not before the responsible parties attempt to fix the school aid formula together during the upcoming legislative session,” Smith wrote. “After all, mandating something the Respondents already intend to do puts the cart before the horse. It is only after they fail to do so that mandamus is warranted.”
Put in place following a 1982 legal case, the school aid formula distributes funding to the state’s 55-county school systems based heavily on public school enrollment numbers finalized every October. While not the only source of funding for county school districts, the school aid funding formula plays a large role in county school budgets. But decades of reductions in student enrollment have caused counties to make hard budgeting decisions, including layoffs and school closing/consolidations.