ACLU-WV Files Suit Asking State Supreme Court to Force West Virginia to Fund Its Public Schools

CHARLESTON, W.Va. – Arguing that the state’s current funding of public schools violates the West Virginia Constitution, a Lincoln County student has filed a petition with the state Supreme Court asking it to order state lawmakers to correct the school funding formula.

The petition, which was filed with the West Virginia Supreme Court of Appeals, follows the notice of intent to sue that the American Civil Liberties Union of West Virginia (ACLU-WV) sent to state officials on Aug. 17.

This isn’t the first time Lincoln County students have taken the state to court over their schools. In 1975, Lincoln County families brought Pauley v. Kelly, the case in which the West Virginia Supreme Court of Appeals established that a “thorough and efficient” education is a fundamental constitutional right. In the 1982 Recht decision that followed, a court found schools “woefully inadequate” and declared the funding system unconstitutional, given that the property wealth of a county decided the quality of a child’s education – an outcome that West Virginia’s Constitution does not allow.

“More than 40 years later, the same problems exist in schools across the state and particularly in Lincoln County,” ACLU-WV Legal Director Aubrey Sparks said. “In many respects, the school funding formula is yielding results that are even less fair, and raise more constitutional concerns, than the system previously declared unconstitutional.”

“Today’s filing could well prove to be the most important case we have filed in my ten years with the organization,” ACLU-WV Executive Director Eli Baumwell said. “Access to a quality education is part of the bedrock of our democracy, and the decision by the Legislature to turn their back on their constitutional obligation to fund schools will have cascading effects on students, and on our communities, unless the Court intervenes.”

Drawing on financial data the state reports to the federal government, the state Department of Education’s own funding computations, and the state’s school report cards, the petition documents system-wide flaws in the school funding system that result in schools receiving less funding than they need, and funding being allocated unfairly.

1. The poorest counties get less. Nationally, states spend about $2,400 more per student in their highest-poverty districts than in their average district because it costs more to operate those schools. West Virginia does the opposite. In 2022-23, counties with the highest child poverty rates got less in state and local funding than counties with the lowest child poverty rates. School funding does not go towards the counties, schools, and students who need it most.
2. The State counts pension debt as per-pupil spending. For decades, the Legislature skipped payments to the Teachers Retirement System, and it is still paying down the debt. A little-known accounting rule means that those debt payments are reported within per-pupil spending totals. In 2022-23, the most recent year for which data was available, that payment accounted for a staggering $296 million of total per-pupil spending. The money pays off a debt of the state, not to classrooms, yet it is counted as education spending in the federal data used to compare states. Remove that payment, and the state’s spending per student falls from 31st in the nation to 39th, and the funding the state itself provides falls from 30th to 35th.
3. A levy rule meant to equalize funding now widens the gap. The funding formula counts only 85 percent of each county’s school levy toward its local share of school funding formula costs. The other 15 percent stays with the county on top of state aid. This means that the counties with the most property wealth per pupil get the biggest bonus. Per pupil amounts raised by the levy ranged $10,773 per student in Tyler County to $939 in Lincoln County. After state aid, the ten counties with the most county property wealth per pupil had $17,960 per student in state and local funding, and the ten poorest had$12,422. Nine of those ten poorest counties have voted to raise their own taxes through an excess levy, and they still come up short.
4. The difference in counties that closed schools isn’t facilities size or enrollment decline: it’s school funding. West Virginia has closed more than 40 schools since 2017, and these closures are usually justified on the grounds that population is dwindling or that large facilities are being underutilized. But counties that closed schools lost students at about the same rate as counties that kept every school open, 15 percent compared with 13 percent. Counties that closed schools had less building space per student, not more than counties that were able to keep schools open What separated them was money: Counties that kept their schools open raised $3,086 per student from the school levy, while counties that closed schools raised $2,397 per student. Put simply, some counties have a significant funding stream that others do not, and those funds, outside of the PSSP, can be used to improve services for students – whether that’s keeping a school open or hiring more teachers.

These problems land hardest in Lincoln County, which has the smallest regular levy tax base per student in the state. Lincoln County schools fall short in measures of proficiency, with seven in ten Lincoln County students falling below proficiency in math. When it comes to staffing, the funding formula that previously led to unconstitutionally deficient schools would actually provide more staff to Lincoln County than what is afforded by the current formula.

“There’s no question under the West Virginia Constitution that students have a right to an education. There’s no question that the State has a duty to provide it. In any just world there would not be a question as to whether the system we have currently falls short,” Sparks said. “If the State genuinely believes that this is the best we can do for our children, then it has abandoned any confidence in our children’s ability to succeed, and we will feel the effects of that abandonment for generations to come.”

The petition names the Speaker of the House of Delegates, the President of the Senate, the State Auditor, the Tax Commissioner, the State Treasurer, the West Virginia Department of Education, the School Building Authority, the State Superintendent, and members of the State Board of Education, along with Lincoln County officials named as necessary parties. It asks the Court to declare the state’s school funding system unconstitutional and to order the state to meet its duty to provide a thorough and efficient education to every child in West Virginia.

Read the petition: https://www.acluwv.org/app/uploads/2026/09/Verfied-Petition-for-Writ-of-Mandamus.pdf

Read the appendix: https://www.acluwv.org/app/uploads/2026/09/Appendix.pdf