Legislature needs reformation before school reform can happen

By Charles McElwee | Mar 5, 2019

CHARLESTON – When Senate President Mitch Carmichael (R-Jackson) calls for reform of our public education system, the place to start is with the West Virginia Legislature itself.

The Legislature is the elephant in the room which has impeded improvements in student academic achievement that no one is inclined to discuss, probably because of their ignorance and the boring nature of the legislative enactments.

I’m referring to the confused mass of words that the Legislature has enacted over multiple decades, going back nearly 100 years to 1921 requiring a course of study in fire prevention, that are published in hundreds of pages in Chapters 18 and 18A of the West Virginia Code.

In those pages, the Legislature has imposed over 100 mandates upon the West Virginia Board of Education. Among them, state code obligates the state board to “establish general guidelines for the establishment of school level programs that encourage capable students in grades six through twelve, inclusive, to sound Taps on a standard or valved bugle, trumpet, cornet, or flugelhorn during military honors funerals held in the state.”

It is my view that the Legislature merits the most blame for the deficiencies in the state’s public school system in that, over the past several decades, it has created a royal mess of our public schools in its repeated efforts to unlawfully micro-manage their education policies through multitudinous mandates.

The Legislature itself is the main source of what needs reform, and the place to begin is for the Legislature to repeal most of its hundreds of pages of nonsense in Chapters 18 and 18A of the state code before adding yet more gobbledygook thereto.

One of my most laborious and boring efforts ever was to review those hundreds of pages to identify and describe more than 100 mandates imposed by the Legislature upon the state board over the past several decades, and to inquire of the board whether it had complied with each mandate.

I urge the House of Delegates and the Senate to adopt a concurrent resolution urging — or better, requiring — every member of the Legislature to read chapters 18 and 18A of the state code, and especially its mandates, in order to discover for themselves what a mess it has created — maybe then, the Legislature will concede that it itself is in need of being informed and reformed.

The education audit got it right in its January 2012 report when its authors urged the state to adopt a more student-centered education system, in contrast to an educational structure “that satisfies the needs and desires of a wide swath of constituencies and consumers that depend on the outputs of primary and secondary education,” who “are all adults.”

As a part of their reading exercise, legislators should also be required to carefully examine and abide by the decision of the West Virginia Supreme Court of Appeals in the Board of Education of County of Kanawha v. the West Virginia Board of Education, which states: “The determination of the educational policies of the public schools [is not for the Legislature to decide but rather] is vested in the West Virginia Board of Education, and, unless unreasonable or arbitrary, its [the board’s] actions relating to such policies will not be controlled by the courts.”

Many of the hundred or so mandates imposed by the Legislature upon the state board are unconstitutional as interfering with or diminishing the board’s constitutional prerogative to determine the educational policies of the public schools.

One of the most blatant of the Legislature’s invasions of the prerogative of the West Virginia Board of Education to determine the educational policies of the public schools occurred in its 2017 regular session, when the Legislature prohibited the state board from implementing the Common Core academic standards. These standards are an educational initiative that details what K-12 students throughout the United States should know in English, language arts and mathematics at the conclusion of each school grade. The initiative was developed by the National Governors Association and the Council of Chief State School Officers.

The Legislature’s directive to the board prohibiting it from implementing the Common Core Academic Standards is clearly unconstitutional in that the directive interferes with, and diminishes, the state board’s authority as interpreted by the Supreme Court to determine educational policies in the public schools.

The Legislature ought to be chastised for its flouting of these decisions of the Supreme Court for the past 30 years in illegally determining educational policies of the public schools.

Moreover, many of the legislative mandates imposed upon the state board are outdated and should be repealed by the Legislature. Other mandates have obscure language. Some mandates conflict with other mandates or are difficult to reconcile with other code provisions relating to academic standards.

“Tinker with” is an apt phrase to describe past and present legislative actions for improving West Virginia’s public schools. It means to dabble, to mess or fiddle with, to make small changes in something in the hope of improving or fixing it.

It is my view that the Legislature is both incompetent and uninformed, and, most importantly, exceeds its constitutional authority, in establishing education policies in the public schools.

For those citizens who genuinely want the state to have an exemplary public school system, let it be said that, if we have to depend on the Legislature to achieve that objective, we may as well fold our tents and go home.

It is time to rein in the Legislature’s flouting of the cited Supreme Court’s decisions for some three decades, by returning to the Supreme Court, if necessary, to compel the Legislature to comply with the court’s rulings.

In the meantime, the West Virginia school board, organizations, both public and private, and citizens should cease kowtowing to the Legislature in matters respecting educational policies in the public schools, which tends to reinforce the Legislature’s erroneous belief that it has power and talent in these matters.

The time has come for the public to cease showing any deference to the Legislature in how our children are educated in public schools.

By and large, legislators, by their very nature, would rather incessantly talk, talk and talk off-the-cuff — meet, meet and meet to keep up the inconsequential prattle — in order to meet their political aspirations as adults. They should read, read and read innovative thoughts about public education, and think, think and think critically of what research has revealed about a more student-centered learning/teaching model in K-12.

McElwee is a Charleston lawyer. This opinion piece originally appeared in the Charleston Gazette-Mail.

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