West Virginia justices evaluate whether first charter school should have gotten go-ahead

West Virginia Supreme Court justices are deciding whether the state’s first charter school application should have been approved by default, whether it fell through cracks in the newly-established process and if there would even be enough time now to get the school up and running for next fall.

Justices heard oral arguments this morning in a lawsuit challenging the rejection of the state’s first charter school applicant, West Virginia Academy, which last year proposed a new school serving Monongalia and Preston counties.

The charter school applicant contends the counties didn’t follow the proper process, that they missed a deadline, that missing the deadline meant the application should have automatically been considered approved and that the state Department of Education should have stepped in to facilitate the approval.

“This has become a giant game of Whack-a-Mole,” said attorney Mark Sadd, representing West Virginia Academy.

West Virginia Academy’s suit is against the Department of Education, contending it had the final say, rather than against the counties.

“The authorizer fails to meet, fails to assemble and does nothing,” Sadd 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 from around the state, applications that are conditionally approved.”

The Department of Education counters that the two counties don’t believe they missed the deadline and so there’s no clear way for the state to intervene.

Deciphering the actual deadline is a point of confusion.

State law gave county boards 90 days from the date of a charter school application to decide whether to approve. If no action was taken, an application would be considered approved by default.

West Virginia Academy submitted its application July 24.

That would have made the deadline for a decision Oct. 22.

Monongalia and Preston did not meet that deadline.

However, there was a different way to interpret the deadline. Rules established by the state Department of Education for the first year established an August 31 deadline covering all charter school applications.

And that rule established a deadline 90 days after that, Nov. 30, for authorizers to approve or deny applications.

Lawyers for the state Department of Education wrote that there was a reason for deadlines that would be consistent for all applicants. West Virginia had limited the number of charter schools to three the first year, and there was anticipation that multiple applicants might be competing against each other.

“The underlying public education policy supporting this rule is to prevent a scenario in which the first charter school applications in the door get acted upon merely because they beat everyone else to the punch on the calendar,” lawyers for the state board wrote in their brief to the Supreme Court.

The Monongalia and Preston County boards met Nov. 30 — the exact day of that deadline — and rejected the charter school application.

With West Virginia Academy contending the deadline was missed and the counties contending they issued a timely rejection, should the state Department of Education have intervened?

Tim Armstead

“Maybe we’re all trying to fill in this gap,” said Justice Tim Armstead.

“You have the two authorizing boards here and then you have the state board. Can you point out anything where there is actually a duty on the part of the West Virginia Department of Education to act when these boards failed to act? Is it a gap, or is there a particular provision that requires them to act?”

Sadd, arguing for West Virginia Academy, said the Department of Education had a defined role to finalize and certify charter school applicants.

But Kelli Talbott, a deputy attorney general representing the Department of Education, said the law defines the counties as the authorizers of charter schools. If they considered the application rejected, she said, there was no clear way for the state to jump in.

She said the law at the time gave local control to the county boards to review the applications and decide whether or not to approve a charter school.

“The petitioner is seeking to compel the department to do something that it has no legal duty to do,” Talbott said.

“The bottom line is the Department of Education doesn’t have the statutory authority to reach down into a local dispute,” Talbott said.

Armstead asked, “What about where you have a situation where it’s the petitioner’s assertion that the approval came from the lack of action by the county boards?”

Talbott said the remedy for the charter applicant in that case would have been to file a lawsuit in circuit court. She noted that the Legislature this past regular session passed a bill that establishes an appeal process. But that wasn’t in effect last year, she said.

“Could state board just reach down and grab it and decide it?” Talbott asked rhetorically. “There’s nothing that gives them the specific authority to do that.”

Evan Jenkins

Chief Justice Evan Jenkins countered that if the counties don’t act on an application within 90 days, then the application would have been considered approved and would have gone on to the Department of Education. “There is a gap there that I think the Legislature clearly intended that gap to be filled by the Department of Education when you got an approved application,” he said.

But Talbott again noted that the counties disputed that they had missed the deadline: “The authorizers said ‘No, we don’t agree with you. We’re disputing that it’s approved and that we should submit it.’”

Beth Walker

Justice Beth Walker questioned how much latitude the Department of Education would have to settle the matter.

“Is it it the position of the Department of Education under the current statute that the Department of Education is prohibited from taking the action the petitioner wants to take — or that it doesn’t want to?” Walker said.

Talbott reiterated that the Department’s position is there is no legal basis for it to take that action.

“Would you concede the statute doesn’t prohibit the Department of Education from taking the action?” Walker asked.

“I think the statute doesn’t specifically prescribe it,” Talbott replied.

Attorney Jacob Manning, representing Monongalia County, said there’s little time left now to reverse course on the school for the coming year. He said the county has to have its budget ready by the end of the month. And he noted that a charter school contract would still need to be agreed upon.

“Here we are on May 4 talking about a school that wants to begin operation in August of this year,” Manning said.

John Hutchison

Justice John Hutchison underscored that point.

He asked Sadd, “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?”

Sadd disagreed.

Hutchison asked the question again.

“You’re well beyond the point of having a contract. You’re well beyond having your absolute plan approved by whichever authorizer needs to approve it,” Hutchison said. “Isn’t the bottom line that there is no way, physically, that you can open a school on August 1 of this year?”

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