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Lawsuit says charter schools shouldn’t be created without votes of the public

West Virginia’s new law expanding the ways charter schools may be approved is being challenged in court.

Sam Brunett of Marion County and Robert McCloud of Kanawha County, both parents and educators, are suing the leaders of the West Virginia Senate and House of Delegates, as well as Gov. Jim Justice.

The lawsuit says the two men, who are education union members, want the right to vote on any charter school created in their counties, citing the state constitution.

“Petitioners will suffer irreparable harm if PCSB-authorized charter schools— independent free school organizations—are created without the consent of a majority of voters in the county or counties in which PCSB-authorized charter schools operate,” the lawsuit states, referring to the newly-created Public Charter Schools Board.

They filed the lawsuit in Kanawha Circuit Court late Thursday. Mountain State Justice, a West Virginia legal organization, had earlier given 30 days notice of its intent to sue on the charter schools issue. Mountain State Justice had also announced intention of suing over the newly-created Hope Scholarship, but this lawsuit focuses only on charter schools.

Charter schools would 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.

The legal challenge is based on a portion 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 lawsuit contends the current path for charter school approval steers around that requirement.

Among the changes to West Virginia’s charter schools law is a new pathway to approval, adding a West Virginia Professional Charter School Board as an authorizer. Board members are appointed by the governor and then go through confirmation by the state Senate.

Previously, authorization went only through county boards — or the state school board in a few instances. The first applicant was rejected last year by the Monongalia and Preston county boards.

Seven applicants have applied to the West Virginia Professional Charter School Board for charter schools authorization. including three statewide online charter schools. None have applied for approval from county school boards, although that path to approval still exists.

The factor to be debated in court is whether newly-created charter schools constitute the product of an independent free school district. There is no element of a public vote of local citizens.

“In 1872, the people of West Virginia safeguarded their right to vote on public school matters in the West Virginia Constitution, ratifying article 12, section 10, which prohibits the creation of independent school organizations absent the consent of county voters,” wrote lawyers for the two men challenging the charter schools.

“In 2021, the Legislature and Governor disregarded this clear legal right and their legal duty by enacting H.B. 2012, authorizing the creation of certain charter schools as independent school organizations without the consent of county voters.”

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