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Supreme Court to consider charter system

CHARLESTON — West Virginia Supreme Court justices will consider whether the state’s system of approving charter schools is constitutional.

Justices will hear oral arguments at 10 a.m. today.

Charter schools receive financial support from the state’s public education system and would be given greater operational latitude in exchange for the possibility of losing their right to operate if they fail. Because they receive public funding, they are considered public schools.

The legal battle is not about whether West Virginia can have charter schools, but instead whether they may be authorized through a newly established Professional Charter Schools Board. Board members are appointed by the governor and then go through confirmation by the state Senate. In this route, there is no vote by the public.

The court challenge is based on a section of the state Constitution that says “no independent free school district, or organization shall hereafter be created, except with the consent of the school district or districts out of which the same is to be created, expressed by a majority of the voters voting on the question.”

Kanawha Circuit Judge Jennifer Bailey in late 2021 granted a temporary injunction on West Virginia’s newest method for approving charter schools, saying a constitutional challenge stands a good chance of succeeding in the long term.

In early 2022, the Supreme Court unanimously granted a stay, allowing the charter schools system to go ahead until the broad legal issues surrounding charter schools will still be explored in court.

The Attorney General’s Office, representing Gov. Jim Justice and legislative leaders, is asking the Supreme Court to now dissolve the preliminary injunction.

The attorney general contends the plaintiffs in the original case erred by naming the governor and legislative leaders rather than the Professional Charter Schools Board.

“Respondents here sued the wrong parties. None of the Petitioners are responsible for enforcing House Bill 2012,” wrote lawyers for the Attorney General’s Office.

Lawyers for parents and educators challenging the charter schools approval process counter that, as the head of the executive branch, Justice is exactly who should be held responsible.

“Gov. Justice maintains, however, that he is completely powerless to instruct PCSB to suspend further creation of charter schools or even exercise his established authority to remove PCSB members, in the unlikely event they would disobey any such instruction,” wrote the lawyers challenging the charter schools.

“Gov. Justice instead throws PCSB under the proverbial school bus, insisting that it, not the State’s chief executive, is responsible.”

The broader argument is whether Professional Charter Schools Board approval of new schools violates a constitutional clause that says no new school district or organization may be created without a vote of people in existing districts.

The Attorney General’s Office disputes that interpretation.

“The claims behind this unusual lawsuit lack merit, as charter schools are not “independent free school districts” that might trigger constitutional concern,” wrote the lawyers for the state.

Those lawyers have argued that clause actually refers to back when school districts were established by townships and represented a safeguard against the Legislature carving out new districts. That argument contends the clause has no bearing on current circumstances.

“In other words, charter schools do not change any existing school district lines,” wrote lawyers for the state, “but operate as an alternate option within the county system.”

When the Legislature first passed a bill allowing charter schools in 2019, authorization went only through county boards — or the state school board in a few instances. The first applicant was then rejected by the Monongalia and Preston county boards.

In 2021, the Legislature made changes to include a new pathway to approval, adding the West Virginia Professional Charter School Board as an authorizer. In its first year, the board approved charters for new, freestanding schools in Morgantown, Nitro and Jefferson County. A week later, the board approved two charter schools that would operate online.

Since then, the Professional Charter Schools Board has approved additional schools, one focusing on business and leadership in Martinsburg and another providing an early pathway to nursing careers in the Kanawha Valley.

The plaintiffs challenging the approval system, Sam Brunett of Marion County and Robert McCloud of Kanawha County, want the right to vote on any charter school created in their counties, citing the state constitution. Their lawyers say the plain language of the constitution says what it says.

“The representatives are here subverting the will of the people by enabling independent charter schools with unelected boards, managed by private, for-profit entities, to take taxpayer funds without any direct accountability to the taxpayers,” wrote lawyers for the charter schools challengers.

Lawyers for the challengers contend state law violates the constitution by enabling the Professional Charter Schools Board to authorize charter schools as independent school organizations, created in school districts, without the consent of county voters.

“It is that simple and straightforward,” those lawyers wrote. “Gov. Justice must therefore try to dodge and befuddle this suit, arguing that (1) Appellees sued the wrong parties, (2) the circuit court’s order offends separation of powers, and (3) that section 10 does not apply to PCSB-charter schools. Each argument fails.”