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SUPCO: Don’t sue the gov. over charter schools

In a question of whether West Virginia’s system for approving charter schools is constitutional, the state Supreme Court has ruled that Gov. Jim Justice isn’t the guy who should be sued.

The justices concluded that the West Virginia Public Charter Schools Board, which was established by the legislature as a way of approving and assessing the schools, is the entity with the actual authority.

“Upon thorough review, we conclude that Respondents lack standing to seek the preliminary injunction at issue against Governor Justice because (1) he does not have the ability to authorize public charter schools, and (2) granting injunctive relief against him does not prevent the PCSB, a nonparty in this case, from authorizing public charter schools,” wrote Justice Tim Armstead in a majority opinion.

“Therefore, we reverse the circuit court’s order, dissolve the preliminary injunction, and remand for further

So the matter isn’t exactly settled but will return to the circuit court level for continued litigation.

The West Virginia Supreme Court’s opinion was handed down Thursday afternoon.

Charter schools receive financial support from the state’s public education system and are 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.

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.

The legal battle is not about whether West Virginia can have charter schools, but instead whether they may be authorized through the Professional Charter Schools Board, where 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 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

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.”

The Supreme Court’s ruling didn’t get into that matter but instead dealt with the matter of

The lawsuit named Governor Justice along with Senate President Craig Blair and House Speaker Roger Hanshaw.

Because Blair and Hanshaw are in the legislative branch and don’t oversee the enactment of policy once a bill is passed, much of the argument in court didn’t really focus on their roles.

Instead, the court system has heard arguments over whether the governor, as chief executive, holds the ultimate responsibility.

The Attorney General contended 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.

“And none have power to authorize the charter schools Respondents oppose — the statute assigns that task to the PCSB.”

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

“Governor 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.

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

The Supreme Court majority emphasized that the governor’s main role was to sign the bill and to appoint members of the Professional Charter Schools Board.

“Governor Justice has no veto authority over the PCSB’s decision to approve or reject a charter school application,” Armstead wrote for the Supreme Court.