A newly-established board has approved five West Virginia charter schools, but that could come to a halt based on an upcoming court hearing.
Kanawha Circuit Judge Jennifer Bailey will hear consider a request for preliminary injunction at 1 p.m. Tuesday in a case that questions whether the state’s method for authorizing charter schools is constitutional.
What’s at issue?
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 filed in October 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,” their lawsuit states.
What does the constitution say?
The legal challenge is based on the state Constitution’s Article 12, Section 10, which 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.
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. Because they receive public funding, they are considered public schools.
When the Legislature first passed a bill allowing charter schools two years ago, 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.
This year, the Legislature made changes to include 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. In this route, there is no vote by the public.
Do those constitute the creation of new, independent school organizations? Do their locations mean they were carved out of the existing districts? And should they have been subject to a vote of the citizens in those counties?
Those are among the issues the judge will be considering.
What do the defendants say?
Well, they disagree with the premise.
In their response filed last month, lawyers for state officials contend the 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 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.
The lawyers for Justice, Blair and Hanshaw say the limitation described in the constitution has virtually no operation today. “Art. XII, Section 10 has nothing to do with the authorization of charter schools,” those lawyers contend in their filing.
They are asking for the lawsuit to be dismissed.
What do the plaintiffs say about that?
They call those arguments a “tortured reading.”
In a court filing responding to those claims, they say the language of the constitution still applies. They contend the lawyers for state officials “effectively want this court to declare article 12, section 10 dead letter — a relic of a bygone era that has no application today and apparently cannot be enforced by anyone: not petitioners, not respondents, not this court or any other.”
The plaintiffs suggest the court should begin its analysis with an examination of the actual language of the constitutional provision at issue.
“And so, because section 10 still applies to the creation of independent school organizations, the question we return to is: Would PCSB-authorized charter schools be independent? And the answer is irrefutably ‘Yes’ — their independence was precisely the point of H.B. 2012’s changes to the 2019 charter school law.”
What is at stake?
In the short term and in the long term, the way charter schools are approved in West Virginia is at issue.
The plaintiffs are asking not only for a preliminary injunction but, over the longer term, for the court to block any authorizations by the Professional Charter Schools Board without votes of county residents.
The lawyers for state leaders contend that even a temporary block would blow deadlines for charter schools to start classes for the coming academic year.
“Charter schools that were temporarily prevented from operating may not be able or ready to function in the coming school year. Parents and students likewise would be prevented for at least a full year from voluntarily taking advantage of the educational choices these schools offer. And that is a year of education these students could not get back,” they wrote.
Fair enough, the plaintiffs say, proposing a solution to that dilemma.
“Respondents contend that students and parents who are interested in PCSB charter schools will be irreparably harmed by a preliminary injunction because it may delay their implementation,” the plaintiffs responded.
“But would-be PCSB charter school students cannot be said to be harmed by continuing to attend their traditional public schools instead, unless respondents are suggesting those public schools are not thorough and efficient, not adequate nor equitable as article 12, section 1 requires.”
Instead, the plaintiffs contend allowing the current system to stand would harm the citizens of affected communities.
“As it stands, without an injunction, PCSB charter schools will be created, and Petitioners will have been deprived of their constitutionally protected right to vote on their creation.”