Who’s suing who?
That was the question the justices of the West Virginia Supreme Court had for the attorney representing the board of what still could be the Mountain State’s first charter school.
Mark Sadd, who client is West Virginia Academy, asked the high court to overrule the denial last fall of the school’s application.
The school wanted to open in the Morgantown area and draw students from across Monongalia and Preston counties.
Under the still-new state statute allowing the possibilities of such schools in the state, that still means approval from the respective school boards, as the legislation was written.
Sadd argued that both Mon and Preston’s boards, in effect, conditionally approved the academy’s application when both missed the 90-day deadline for voting after it was submitted this past July 24.
Both boards, though, contended that the meter actually started running Aug. 31, making the three-month mark Nov. 30 – the date of which both boards denied the document.
Monongalia’s board said the charter failed to meet seven-of-10 state-mandated benchmarks, and Preston County followed with the same vote.
Meanwhile, Sadd, whose suit is primarily against the state Department of Education, was told by Justice John Hutchison his appearance Tuesday was all for naught.
“In fact, you’re suing the wrong person,” he said.
Local school boards, and not the state’s overseeing entity of education, have the final say in the process, the justice told the attorney.
Sadd, though, said the process was unclear from the beginning, in that filing and voting dates were already in dispute.
And the state Department of Education, he argued, didn’t step like it was mandated, to make a decision – if a local school board (referred to in the approval process as an “authorizer”) can’t or won’t.
Neither board, Sadd told the justices, met with their counterparts at the West Virginia Academy, even though the legislation called for that, as well.
“The authorizer fails to meet and does nothing,” he said.
“So to the petitioner, there is a clear duty of the West Virginia Department of Education to finalize, certify all submissions that are collected around the state,” the attorney continued.
The state Department of Education, though, told him it was the decision of the local boards.
“This is like a giant game of Whack-A-Mole,” he said, of the back-and-forth.
Cramming for the test
In the meantime, the back-and-forth with the justices Tuesday in Charleston showed the charter school bill, and its process, still has a learning curve.
That the bill was written with an eye to control of local school boards sparked an exchange between Chief Justice Evan Jenkins and Kelli Talbott, a deputy attorney general arguing on behalf of the state Department of Education.
“The bottom line is the Department of Education doesn’t have the statutory authority to reach down into a local dispute,” she said. “This is a ‘local control’ bill.”
Jenkins, though, spoke to the gaps and time lags in this case, specifically.
An approved application, no matter the circumstances, is an approved application, he said.
“I think the Legislature clearly intended that gap to be filled by the Department of Education when you got an approved application,” the chief justice said.
Tardy all the time?
In the meantime, there’s also the matter of the deficiencies noted in the application by Mon school officials who reviewed the 371-page document.
Mon Schools attorney Jacob Manning said the academy already ran out of time for this coming academic year.
That’s because a contract would still have to be negotiated between the Mon’s school district and the academy, he said.
“And here we are on May 4 talking about a school that wants to begin operation in August.”
Sadd, meanwhile, said the school could make that timeline if all parties cooperated.
Hutchison, though, wasn’t so sure. Not without a contract or approved plan, he said.
The justice: “Isn’t it true that as we stand here today, this case is really moot because you cannot, even if we were to grant your writ, you cannot meet the other standards and regulations to be ready to open a school on August 1 of this year?”