In lawsuit, W.Va. officials say authorizing charter schools is no constitutional runaround

West Virginia government leaders contend a new path to approve charter schools does not circumvent the state Constitution.

The legal question is whether allowing a new Professional Charter Schools Board to approve new schools violates a clause that says no new school district or organization may be created without a vote of people in existing districts.

How a judge interprets that clause will be a key to the case: Is it a matter of procedure, or a matter of geography?

Moreover, does a constitutional clause dating to the late 1800s apply to current consideration of charter schools?

A lawsuit filed earlier this year contends state leaders skirted constitutional restrictions by establishing the new Professional Charter Schools Board, which went on to approve new freestanding schools in Morgantown, Nitro and Jefferson County.

That lawsuit named as defendants Gov. Jim Justice, Senate President Craig Blair and House Speaker Roger Hanshaw, saying they were responsible for the new policy.

In responses filed in Kanawha Circuit Court, lawyers for the defendants contend it defies logic that the Professional Charter Schools Board isn’t named as a defendant instead.

And they say there’s no legal way to force the governor, the Senate president and the House speaker to change a law or to hold a vote on any public matter. For the court to force such a vote, they say, would be a violation of separation of powers.

Moreover, lawyers contend the original lawsuit misinterprets the state Constitution, saying that clause “does not prohibit the authorization of charter schools. Nor does it require that they be voted upon before they are approved.”

Those lawyers say that clause goes way back to an era when the Legislature was dividing the geography of school districts without the consent of communities. And they contend the Constitution needs to be interpreted within the scope of what the framers intended.

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.

The defendants disagree, describing ‘recruitment areas’ for students who may attend charter schools, rather than carving out a school district: “None of the territory of the county districts where a charter school operates is ‘annexed’ to that charter school.

The filings for the defendants focus on history shortly after West Virginia’s creation, describing schools administered by local townships. In those days, the Legislature created school districts independent of those townships, carving out a new school district from the geography of another.

In 1872, the state Constitution included a limitation that the Legislature could not alter the territory of an existing school district to create a new, independent one.

Attorneys for the defendants contend the issue of carving out districts became moot in 1933 when the Legislature established a county district system.

West Virginia passed a law allowing charter schools for the first time in 2019. 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.

Initially, 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.

So this year, the Legislature established 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.

There is not a public vote of county residents in those cases.

Lawyers for the defendants wrote, “It allows an authorizer (including the PCSB) to ‘review’ charter school applications and to ‘approve or reject ‘ them without holding a county-wide vote. HB 2012 would have to be rewritten to add such a requirement.”

The legal challenge was brought by Sam Brunett of Marion County and Robert McCloud of Kanawha County, both parents and educators. They contend they will  suffer irreparable harm if the charter schools are created without the consent of a majority of voters in the county or counties where the charter schools operate.

Their lawyers wrote, “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.

“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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