Constitutionality of Senate's Proposed $79M Cut to Public Ed Questioned

A Senate committee has delayed consideration of a bill that some Democratic members challenged as being unconstitutional Saturday.

Senate Bill 609 would cut funding to public education by reducing the state school aid funding formula.

As introduced, the bill would have reduced public education funding by cutting the money available to be distributed by the school aid funding formula by 5 percent, or $55 million.

In the Senate’s Education Committee, however, the bill was rewritten, making a larger cut and shifting the tax burden away from general revenues to increased local property taxes.

School Levies:

The multi-step process in the school aid funding formula that is followed to compute the state dollars each county receives includes a calculation based on the local funding brought in through a county excise school levy.

Those levies must be approved by the voters in the county because they result in increased property taxes in order to generate additional money for their schools. Levy rates themselves, or the actual percentage increase of taxes allowed to be proposed in a levy, are set by the Legislature.

Currently under state code, counties can assess levies at 19.4 cents for every $100 of value a property is appraised. The maximum the Legislature can set that rate at is just over 22 cents per $100 of value.

The Senate Education Committee’s version of Senate Bill 609, which was approved Thursday evening, would pass the authority to increase the levy rate from the Legislature to individual county boards of education.

That shift in power is paired with more flexibility for county administrators to spend their state dollars how they see fit, but also a $79 million reduction in that funding, shared among the counties at different rates.

Senate Education Committee Attorney Hank Hager explained to the Finance Committee Saturday that while the new committee version of the bill does result in a funding cut, county boards of education can vote to increase their levy rates and make the county whole.

Credit Will Price / West Virginia Legislative Photography

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West Virginia Legislative Photography

Democratic Sen. Bob Plymale questioned Hager in committee about the county control in the bill. Should a county vote against increasing their levying rate, their state dollars will still be reduced. That would result in counties receiving different levels of funding from the state, he said.  

Senate Minority Leader Roman Prezioso argued that variance in funding could result in a violation of the Recht decision and be deemed unconstitutional.

The Recht Decision:

The Recht decision is named after then-Ohio County Judge Arthur Recht, who in the late 1970s and early 1980s was charged with hearing evidence in a case remanded to the circuit court by the West Virginia Supreme Court of Appeals.

In the case, a Jackson County mother argued that because she lived in a poor county, her children were not receiving the same quality of education as children in rich counties, violating the state Constitution’s requirement that lawmakers provide all West Virginians with a “thorough and efficient” education.

The state Supreme Court agreed and Judge Recht was charged with exploring what that system should look like, releasing his decision — or set of standards for providing that education — in 1984. Those standards, among many things, required the state to fund each county school system equally.

 Reconsidering the Bill:

After the committee’s open discussion, and a brief caucus of Republican Finance Committee members, Senate Finance Chair Mike Hall decided to pull the bill from the agenda Saturday and push consideration to a Monday afternoon meeting.

“The schools have to be equally funded, and the school aid formula creates a statute that distributes money equally based on student population across the state,” Hall said, but the version of the bill passed in through the Senate Education Committee, he added, could create the situation of unequal funding.

Hall said only one-sixth of the funding for public schools comes from local property taxes and the bill is essentially asking West Virginians to take on a larger local share, increasing the property tax levying rate to the highest amount possible without a Constitutional amendment.

The committee will be presented with a new version of Senate Bill 609 Monday; one that Hall said will likely call on the Legislature to increase the levying rate from 19.4 cent to the full 22.9 cents, rather than giving local county boards of education the authority to increase the rates.

That change, he said, will still result in a $79 million reduction in general revenue funds going to county school systems, but a statewide increase in property taxes to make up for the cut, not a variance of funding in the counties.

The Senate Finance Committee has put the bill on its agenda for 3 p.m. Monday.  

Wednesday is the final day for Senators to approve any bills that originated in their chamber.