West Virginia
State Protections and Legal Framework
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Constitutional Framework
Article XII of the West Virginia Constitution governs Education. Section 1 reads: “The Legislature shall provide, by general law, for a thorough and efficient system of free schools.”
The state constitution does not include any education-specific provisions barring discrimination based on race, color, national origin, sex, or disability, though case law establishes that equity is implicit in “thorough and efficient” language.
Case Law Interpreting a “Thorough and Efficient System of Free Schools”
Pauley v. Kelly, 255 S.E.2d 859 (W. Va. 1979): Established the framework for West Virginia’s constitutional right to education and remanded for specific findings.
Parents of children attending public school in Lincoln County brought action for declaratory judgment on claim that system for financing public schools violated state constitution by denying the “thorough and efficient” education required and by denying them equal protection of the law based on out-of-balance funding in poor counties compared to wealthy counties.
The West Virginia Supreme Court held that education was a fundamental, constitutional right and that “thorough and efficient” under Article XII §1 required that the education system must be designed to serve all students equitably, regardless of geography or economic background.
Pauley v. Bailey, 324 S.E.2d 128 (W. Va. 1984): Arising from the same litigation as Pauley v. Kelley, this decision focused on practical enforcement and implementation of the constitutional framework.
On remand, the trial court ordered the creation of a “Master Plan” for the constitutional composition, operation, and financing of the educational system. Delays in implementation of the plan led plaintiffs back to court where the West Virginia Supreme Court ruled that the state has a “specific duty to implement and enforce the policies and standards of the Master Plan.”
The case was remanded again for further monitoring and implementation.
Randolph County Board of Education v. Adams, 467 S.E.2d 150 (W. Va. 1995): Expanded the interpretation of the constitutional right to free education in West Virginia to include not just access to schools, but access to free necessary instructional materials.
Board of Education filed action for declaratory judgment directing over 100 parties (either single parents or married couples who were parents of school children) to pay a textbook fee. The fee was charged only to “non-needy” school children, but such classification was determined merely by relying on a list of children receiving reduced or free lunches. It did not take into consideration families that qualified for free or reduced meals but chose not to participate. Parents filed Motion to Dismiss.
Supreme Court of Appeals held that “public education must be free of charge to students, and it is unconstitutional to impose a fee for materials that are integral to the educational process.”
Frequently cited when discussing educational equity and civil rights protections for low-income students.
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Relevant W. Va. Code Chapters for Reference:
Chapter 5: General Powers and Authority
Chapter 16B-17: Human Rights Act
Chapter 18: Education
Chapter 18B: Higher Education
State Equivalents to Federal Laws:
Title VI & Title IX & Section 504 Equivalent: West Virginia Human Rights Act (W. Va. Code § 16B-17-1 et. seq.)
Enforced by West Virginia Human Rights Commission.
Makes it unlawful for any “place of public accommodations” (including all public K-12 schools) to discriminate on the basis of race, religion, color, national origin, ancestry, sex, age, blindness, or disability.”
Substantively mirrors Title VI’s protections for race, color, and national origin, Title IX’s protections for sex, and Section 504’s protections for disability, but applies regardless of federal funding.
Section 504 Equivalent: Education of Exceptional Children Law (W. Va. Code § 18-20-1 et seq.)
Requires a free appropriate public education for students with disabilities.
Substantively mirrors IDEA and Section 504 requirements for equal access and reasonable accommodations.
EEOA Equivalent: WV Board of Education Policy 2417 – English Language Proficiency Standards for English Learners
POLICY, not law.
Operationalizes EEOA’s language access requirement with specific standards, assessments, and accountability measures. Specifics include: (a) identification of English Learners within 30 days of enrollment; (b) annual English language proficiency testing; (c) English Language program monitoring and staffing expectations; (d) parent notification in languages understandable to families.
Mirrors portions of EEOA that require schools to take appropriate action to overcome language barriers, prohibit denial of opportunities based on language proficiency, and provide effective language support programs.
Additional Civil Rights Statutes that Go Beyond Federal Laws (Protections):
Homeless Children (Article 8A: Attendance of Homeless Children Section 18-8A-1 et seq.)
Legal framework addressing the educational rights of homeless children in the state, recognizing the Legislature’s intent that no child shall be denied the benefits of a free public education because the child is homeless and declaring the right to equal educational opportunity regardless of housing status.
A homeless child seeking shelter in a district is legally considered a resident of that district and may attend school there, tuition-free.
Directs the State Board of Education to deliver regular reports to the Legislature identifying successful at-risk program models and recommending strategies and funding needs to support program delivery.
Additional Civil Rights Statutes that Go Beyond Federal Laws (Restrictions/Gaps):
Equal Treatment in Primary and Secondary Education Act of 2025 (W. Va. Code § 18-2-9b)
Prohibits schools, the State Board, and district employees from teaching that: (a) one race, sex, or ethnic group is inherently superior; (b) individuals are inherently racist, sexist, or oppressive based on innate characteristics; (c) discrimination is justified on those bases; (d) moral character is influenced by race, ethnicity, or sex; (e) individuals bear responsibility for actions committed by other members of the same race, ethnic group, or sex; (f) individuals should feel distress because of their race, ethnicity, or sex; and (7) meritocracy and work ethic are racist/sexist or created by members of a particular group to oppress those outside the group.
Equal Treatment in Higher Education Act (W. Va. Code §18B-4-6)
Mandates that state institutions of higher education remain officially neutral on concepts like unconscious or implicit bias, microaggressions, systemic oppression, identity group allyship, and critical race theory.
Prohibits institutions from conducting training on DEI topics.
Prohibits “preferential consideration” to applicants based on race, color, ethnicity, national origin.
Bans on DEI Offices and Programs
Equal Treatment by the Executive Branch Act of 2025 (W. Va. Code § 5-33): Prohibits DEI-related offices, hiring, training, and preferential treatment based on race, sex, or ethnicity in state agencies and educational entities.
W. Va. Code § 18B-1G: Similarly prohibits DEI offices and officers in higher education.
Sexual Orientation/Gender Identity
There is no statewide law explicitly prohibiting discrimination based on sexual orientation or gender identity in education or public accommodations. Legislative efforts to add these protections to the Human Rights Act have failed repeatedly.
Some cities and municipalities have enacted local non-discrimination ordinances which cover sexual orientation and gender identity. Some may apply to public schools.
Meanwhile, there are state laws that actively restrict transgender students’ access to athletics and gender-designated spaces.
HB 3293, titled “Save Women’s Sports Act,” amended W. Va. law to require that interscholastic athletic events be restricted based on biological sex at birth. Codified at W. Va. Code § 18-2-25d. The constitutionality of the Save Women’s Sports Act has been challenged in federal court.
SB 456, effective July 2025, extended the same gender-based classification approach to other sex-designated spaces (bathrooms, locker rooms).
Multilingual Learners
West Virginia does not have state statutory protections for multilingual learners that go beyond federal requirements (such as those in the EEOA).
There is no state law mandating bilingual education, dual-language programming, or formalized rights for English learners beyond general education access.
Undocumented Students
West Virginia Code does not contain any provisions recognizing or protecting undocumented students as a distinct group in public education. There is no statute affirming their right to enroll, nor prohibiting
discrimination on the basis of citizenship status.
Cause of Action for “Color of Law” Violations for Law Enforcement in Schools
There is currently no codified state statutory mechanism to sue for constitutional or statutory rights violations committed under color of law. Individuals must rely on federal claims or state-level tort actions.
Proposed state reforms to lift immunities and add a broader cause of action have been introduced but not codified.
Private Right of Action Provisions
There is a private right of action under the West Virginia Human Rights Act, at W. Va. Code § 16B-17-13, which establishes an exclusive remedy while preserving the right to sue.
Individuals who file a discrimination complaint with the Human Rights Commission may request a Right-to-Sue letter if the complaint is dismissed or unresolved after conciliation.
Upon receiving this letter, they may file a civil action in circuit court within 90 days.
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The West Virginia Human Rights Act confers a claim on the aggrieved individual, which could include students or parents/legal guardians of minors.
W. Va. Code § 16B-17-9(7)(C) explicitly includes retaliation as an unlawful discriminatory practice.
Individuals must file complaint with Human Rights Commission (see process below) within 365 days. W. Va. Code § 16B-17-10. If administrative resolution fails, individual has 90 days to file a civil suit after receiving a Right-to-Sue letter. W. Va. Code § 16B-17-13.
There is no specified time limit for civil actions brought by the Attorney General under the Human Rights Act.
State Attorney General Enforcement Actions
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Enforcement Powers
The West Virginia Attorney General has general legal authority to defend state laws and intervene in constitutional matters.
W. Va. Code § 5-3-2 gives the Attorney General broad authority to represent the state and its officers.
The Human Rights Act does not give the Attorney General original enforcement power (that belongs to the Human Rights Commission).
The West Virginia AG does not accept individual civil rights complaints related to education. Complaints must be filed with the relevant administrative bodies, including the Human Rights Commission and Department of Education (processes outlined below).
The AG may, of its own initiative, make a complaint with the Human Rights Commission (W. Va. Code § 5-11-10) or file a civil complaint in the appropriate circuit court (W. Va. Code § 16B-17-20).
Recent Actions by West Virginia Attorney General (all reflect effort to diminish civil rights protections)
See B.P.J. by Jackson v. W. Virginia State Bd. of Educ., 98 F.4th 542 (4th Cir. 2024): Transgender (MTF) student challenged W. Va. Code § 18-2-25d as violating the Equal Protection Clause and Title IX. The West Virginia AG defended the law in court and appealed Fourth Circuit’s ruling that the law couldn’t be lawfully applied to the Plaintiff; SCOTUS accepted cert.
Tennessee, et al. v. Cardona, 737 F. Supp. 3d 510 (E.D. Ky. 2024): A coalition of six states, including West Virginia, an association of Christian educators, and one female student-athlete challenged the Biden administration’s Title IX rules expanding protections for LGBTQ+ students (89 Fed. Reg. 33474), asserting that it exceeded statutory authority and infringed upon states’ rights and student privacy. N. D. KY issued a preliminary injunction, blocking enforcement of the “arbitrary and capricious” rule in the six plaintiff states.
Tennessee v. Cardona, 762 F. Supp. 3d 615 (E.D. Ky. 2025): In January 2025, the same court vacated the rule in its entirety, declaring it inconsistent with the Spending Clause and First Amendment concerns.
State v. Beaver, 248 W. Va. 177 (2022): Following the 2021 enactment of the Hope Scholarship Fund (Education Savings Accounts for students), public school parents filed a legal challenge arguing it violated the state constitution’s provisions on public education by exceeding the legislature’s duty to fund a thorough and efficient system of free schools, diminishing funding for public schools without a compelling state interest, and redirecting resources meant for public schools. Circuit court granted a permanent injunction, finding the Act unconstitutional, which the Supreme Court reversed. Legal analysts criticized the decision.
Texas v. Kennedy (previously Texas v. Becerra), Case No. 5:24-cv-00225: A group of 17 states, including West Virginia, sued the United States government in the Northern District of Texas in September 2024, challenging Section 504 as unconstitutional, after 2024 updates included gender dysphoria on the list of protected disabilities among other changes. The complaint asked the court to 1) declare that the updated Section 504 regulations are unenforceable and unlawful and 2) declare that Section 504, in its entirety, is unconstitutional and unenforceable.
After backlash, in April 2025, states said they are no longer challenging the constitutionality of Section 504 in its entirety and will not seek relief on that count. HHS also issued a notice that the 2024 update regarding gender dysphoria “does not have the force or effect of law” and “cannot be enforced,” mooting those claims. States are still pursuing nullification of other specific aspects of the updated 2024 regulations.
The court has maintained a stay on the case.
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The West Virginia Attorney General does not have an office or section dedicated to education or civil rights issues.
The West Virginia Human Rights Commission handles most discrimination claims involving schools pursuant to the West Virginia Human Rights Act.
Other State Enforcement Systems
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Human Rights Commission
Handles broad state civil rights law enforcement for public accommodations, employment, and education per the West Virginia Human Rights Act.
State Department of Education
Focuses on disability-related issues especially under Section 504/Title II and IDEA, as statutory and administrative authority is strongest around education-specific disability law and federal education program compliance.
May act as a liaison to refer complaints to appropriate state or federal agencies.
HUMAN RIGHTS COMMISSION
(HANDLES MOST DISCRIMINATION COMPLAINTS)
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Any individual, group, or organization who believes they have experienced or witnessed unlawful discrimination under the West Virginia Human Rights Act can file a verified complaint.
Assistance in drafting and filing complaints is available through the Commission.
Complaints must be signed and notarized and filed with the Commission upon forms prepared by the Commission, which the Commission will supply by request.
Complaints must include the name and address of the complainant, name and address of respondent, a concise statement setting forth the facts of the alleged discrimination, the dates of the alleged unlawful practice.
Can be filed at any Commission office by personal delivery or mail.
Must be filed within 365 days after the alleged conduct.
The complaint may be amended at any time prior to a finding of probable cause, and thereafter for good cause shown at the discretion of the ALJ.
Upon written notice to the Commission or ALJ, if the case has been noticed for public hearing, a complainant may withdraw the complaint.
Complaints can be dismissed if Commission lacks jurisdiction over the parties or subject matter or in other enumerated circumstances like mootness, death of complainant, failure to state a case.
Respondents have a duty to preserve records related to the investigation.
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After the filing of the complaint, Respondent must file a written reply within 10 days.
The Commission must conduct an investigation within 75 days, not to exceed 150 days. Purpose is to determine if reasonable cause exists.
The Commission may take depositions of any parties or order the production of documents or interrogatories.
The parties may reach a settlement during the investigation, which will be reduced to writing and accompanied by a withdrawal of the complaint.
The Executive Director of the Commission, or others as designated by the E.D., must authorize a ruling dismissing the complaint if the investigation finds no probable cause of unlawful discriminatory practice. The ruling must be delivered to the parties within 15 days of the determination.
If the investigation reveals a patter nor practice of discrimination by the respondent—even if there is no probable cause as to the complainant—the Commission will dismiss the individual complainant and proceed to prosecute the complaint in its own name.
If the Executive Director finds probable cause, the Commission will notice the case for public hearing. W. Va. Code R. § 77-2-5.
Settlement and mediation are encouraged at all stages.
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After the Commission issues a finding of probable cause, a written notice of hearing, together with a copy of the complaint, will be served on the parties at least 30 days prior to the hearing.
Respondent must file a written answer within 10 days of receiving the notice of hearing. W. Va. Code R. § 77-2-6.
Hearing will be conducted by an Administrative Law Judge.
Hearings are open to the public, in the county the respondent resides (here, in the county in which the school is located).
Respondent may appear with or without counsel.
The case in support of the complaint is presented by the Commission’s attorney or agent. If complainant is represented by private counsel, counsel may present the case with the consent of the Commission (and the Commission will not be represented at the hearing).
Typical discovery, motions, evidence practice, etc.
Within one year of filing the complaint, the ALJ issues a final decision on the merits.
ALJ may issue remedies, including cease and desist orders, damages, and equitable relief.
Within 30 days, parties can file a Notice of Appeal and petition with the Commission. Responses may be filed within 20 days.
Within 60 days of the Notice of Appeal, the Commission must render a final order affirming the ALJ’s decision or remanding the matter for further proceedings before an ALJ, or a final order modifying or setting aside the ALJ’s decision.
If no Notice of Appeal is filed within 30 days, the Commission renders a final order affirming ALJ’s decision.
Parties can file a judicial appeal within 30 days after receipt of the Commission’s final order affirming, modifying, or setting aside the final decision of the ALJ.
If a party does not obey the Commission’s final order within 30 days (or within 30 days of the judicial court’s final order, if applicable), a party or the Commission may petition the circuit court for its enforcement.
DEPARTMENT OF EDUCATION
(DISABILITY ISSUES)
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● Anyone can file who believes disability-based discrimination has occurred in Department of Education programs or services.
Submit a written complaint to the Department of Education Title II/Section 504 Coordinator, including name, contact info, and clear statement of the issue within 60 days of the alleged incident.
No filing fee; cannot file anonymously.
May be represented by a designee or advocate, but no explicit entitlement to counsel unless IDEA-related.
Parents or local education agencies can file a due process complaint on any matter relating to the identification, evaluation or educational placement of a child or the provision of a free appropriate public education.
Reasonable efforts should be made to resolve the concerns at the school or county level first.
Signed, written complaint must include the student’s name, address (or other contact information if homeless), and the school; a specific description of the student’s problem to the proposed or refused initiation or change, including the facts; and a proposed resolution.
There is a form that may be used and mailed to the district’s special education director at the same time it is mailed to the West Virginia Department of Education, Office of Federal Programs.
Complaint must be initiated within one year of the alleged violation.
OFPS is required by federal and state regulations to provide information regarding free and low-cost legal services within the state to parents involved in due process complaints.
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Title II / Section 504 (Disability)
● Investigation will begin within 48 hours of receiving complaint.
Department of Education responds within 45 days, in the complainant’s preferred accessible format.
Upon receipt of the complaint, the Office of Federal Programs assigns a hearing officer, who will notify the county school district, request records or documentation needed for the investigation, and provide opportunity for the complainant to submit additional information orally or in writing.
Within 15 calendar days, the local educational agency must hold a Resolution Session, which provides an opportunity for the parties to resolve the dispute that is the basis of the complaint, unless the parties agree to mediation in lieu of the resolution session.
If resolution is reached, a legally binding agreement will be developed and signed and the agreement will be sent to the OFPS and the assigned hearing officer.
Either party may void the agreement within three business days by written notice to the other party.
If the district has not resolved the complaint within 30 days, a due process hearing may occur.
The due process hearing officer’s written decision will be issued within 45 days after the hearing commences unless an extension is granted at the request of a party.
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Title II / Section 504 (Disability)
May appeal decision to Department of Education General Counsel within 15 calendar days of receiving it.
The due process hearing officer’s decision is final, unless either party brings a civil action within 90 days.
If the decision provides orders to be implemented by the school district, the OFPS will follow up to ensure the decision is implemented. Within 30 days following the issuance of the decision, or based on timelines stated in the decision, the OFPS will send a letter to the special education director requesting documentation of implementation. Parents will be given the opportunity to submit information if they believe the decision is not being implemented appropriately. The OFPS will review the information and close the case or order further corrective activities. If a case is appealed to civil court, follow-up will be put on hold until the case is resolved.
Courts may award reasonable attorneys’ fees to parents of students with disabilities when parents prevail in a due process hearing (pursuant to IDEA). The due process hearing officer does not have the authority to award fees.