West Virginia

There have been no recent developments in educational opportunity litigation in West Virginia.

In 1979, in Pauley v. Kelly, the West Virginia Supreme Court of Appeals, the highest court in the state, held that education is a fundamental right under the West Virginia constitution and found that the state’s education financing system was unconstitutional. In subsequent proceedings, the trial court required the state to develop and implement a detailed master plan for education reform. The court, with the help of the state superintendent of schools, developed this 356-page master plan to change the funding formula, define school standards, and enact accountability measures.

Plaintiffs returned to court in 1995, in Tomblin v. Gainer, alleging that the state had failed to implement most of the 1982 court-ordered plan, from the Pauley v. Kelly case. The court agreed with them, holding that the state did not provide a "thorough and efficient" system of education, as required by the state constitution.

In 1996, in Tomblin v. State Board of Education, the trial court held that the state still did not provide a "thorough and efficient" system of education, as required by the state constitution. Subsequently, in 1998 the legislature revised the education system more substantially than it had in the 1980s. As a result, in 2003, the trial court ended its jurisdiction. In essence, the decision stated that the court must step back and give the legislature time to see if its reforms work.

For more detailed information, email Education Justice.

"The Legislature shall provide, by general law, for a thorough and efficient system of free schools." W. Va. Const. art. XII, § 1.

"The Legislature shall foster and encourage, moral, intellectual, scientific and agricultural improvement." W. Va. Const. art. XII, § 12.

In Pauley v. Kelly, the court gave more detailed definitions to some of the broad terms of the constitution:

"We may now define a thorough and efficient system of schools: It develops, as best the state of education expertise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupations, recreation and citizenship, and does so economically.

Legally recognized elements in this definition are development in every child to his or her capacity of

1. literacy;
2. ability to add, subtract, multiply and divide numbers;
3. knowledge of government to the extent that the child will be equipped as a citizen to make informed choices among persons and issues that affect his own governance;
4. self-knowledge and knowledge of his or her total environment to allow the child to intelligently choose life work to know his or her options;
5. work-training and advanced academic training as the child may intelligently choose;
6. recreational pursuits;
7. interests in all creative arts, such as music, theatre, literature, and the visual arts;
8. social ethics, both behavioral and abstract, to facilitate compatibility with others in this society.

Implicit are supportive services:

1. good physical facilities, instructional materials and personnel;
2. careful state and local supervision to prevent waste and to monitor pupil, teacher and administrative competency."

255 S.E.2d 859, 877 (1979).

The legislation implementing the pre-K program acknowledges the importance of universal pre-K education and the role it can play in improving school readiness and performance, decreasing behavioral problems, and decreasing the need for remedial assistance in later years. The statute also makes an explicit finding about the potential harm of low-quality pre-K programs, particularly for at-risk children.

The program is delivered in public schools, as well as private and public childcare programs. 

The state puts a strong emphasis on collaboration between county school boards, private providers, and Head Start. It requires at least 50% of classrooms in a given county to be in a community childcare, preschool or Head Start program under a contractual agreement.  All providers must meet the same quality standards.  The pre-K program must meet at least 12 hours per week, but no more than 30 hours per week, during the school year calendar. The program must meet at least 3 days per week.

Prior to 2004, state-funded programs were permitted to serve 3- and 4-year-olds. However, eligibility for 3-year-olds is now limited to those who have are receiving special education services.  There are no further qualifying criteria for 4-year-olds as the program moves toward universal enrollment.

West Virginia’s pre-K program is funded primarily through the state aid formula. The state revised its funding calculations in the 2008-2009 school year, so full-time equivalency in the aid formula is based on the hours of instruction for all children.  As a result, more children are enrolled in full-day programs throughout the state to qualify them for this funding.  County school boards are expected to leverage other funding sources as well, including Head Start funds, and other public and private sources.

In addition to school finance aid, West Virginia provides state funding for remedial and preventive programs for school districts with high percentages of at-risk children. This funding may be applied to support pre-K programs.

The pre-K program is provided at no cost to families.

County school boards are required to develop and implement a plan to provide pre-K to all 4-year-olds, and the plan must provide for universal enrollment by 2012-2013. However, implementation of the county plan may be waived by the state board of education due to insufficient facilities or funds to operate the preschool program.

According to the National Institute for Early Education Research (NIEER), West Virginia served 55% of 4-year-olds its state preschool program in 2008-2009, which represents an increase from the 51% served during the 2008-2009 school year and the 46% served during the 2007-2008 school year.

Only 9% of 3-year-olds were served during the 2008-2009 school year.

Quality Standards

The Universal Pre-K program reached 8 out of the 10 benchmarks.

The 8 benchmarks reached were:

• Early Learning Standards
• Requirement that teachers have specialized training in pre-K education
• Teacher in-service (15 hours)
• Class size limits of 20 students
• Class ratio of 1:10 or better
• Screening/referral and support services
• Monitoring/Site visit program
• Requirement to provide at least one meal a day

The 2 benchmarks not met were:

• Teacher must have Bachelor’s degree
• Assistant teacher must have a Child Development Associate credential, or equivalent

Programs must conduct a self-evaluation using the Early Childhood Environment Rating Scale (ECERS) on an annual basis. Outside evaluators will be brought in at least once every 5 years.

The state department of education is also required to develop and institute a system of longitudinal, scientific-based research to track learner outcomes, family satisfaction, and program continuity.

West Virginia Code

West Virginia Code of State Rules

West Virginia Department of Education

West Virginia Universal Pre-K