A Kanawha Circuit judge has called a 10 a.m. Monday hearing on whether to halt the new way West Virginia approves charter schools.
Judge Jennifer Bailey is weighing a temporary injunction request by parents and educators who say the state’s method of approving charter schools is unconstitutional. At the end of a hearing last week, Bailey had indicated she would issue a ruling by Friday.
One possibility is that the judge will state her ruling during Monday’s hearing.
Another is that the judge could provide guidance on an issue within the overall case — whether the Professional Charter Schools Board should be a subject of the lawsuit. Lawyers for the current defendants — Gov. Jim Justice, Senate President Craig Blair and House Speaker Roger Hanshaw — have objected that the Professional Charter Schools Board is actually the only entity that could effectively respond to an injunction.
“Here the plaintiffs have not said what they want the governor, the Senate President and the Speaker of the House to stop doing,” Sean Whelan, an assistant attorney general representing the state figures, said in court last week. “None of these people are capable of authorizing charter schools. An injunction entered against them would have no effect.”
Near the end of last week’s hearing, attorney Joshua Weishart indicated the parties suing over charter schools would be amenable to adding the Professional Charter Schools Board if the judge reached that conclusion.
The Professional Charter Schools Board was established by the Legislature this year to consider the authorization of new schools. 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.
Last month that board approved charters for new, freestanding schools in Morgantown, Nitro and Jefferson County. A week later, the board approved two charter schools that would operate online.
During its meetings over the past few months, the Professional Charter Schools Board has regularly broken into executive session with the stated purpose of discussing legal matters with an attorney.
State lawmakers set up the Professional Charter Schools Board after the first applicant to start one of the schools was rejected by the Monongalia and Preston county boards.
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.
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 plaintiffs, Sam Brunett of Marion County and Robert McCloud of Kanawha County, contend the Professional Charter Schools Board circumvents that clause, setting up independent schools without a vote of people in the districts.
“We’re not asking the court to order a vote. We’re simply asking the court at this stage to issue a preliminary injunction that would be binding, at the very least, on the governor,” Weishart, one of the lawyers representing the plaintiffs, said last week.
The lawyer for the state officials being sued has said a preliminary injunction would knock the timeline for the newly-approved charter schools off course and that they probably would be unable to open for students next fall as intended.
“It’s not easy to start a school up,” Whelan said, “and if they’re not able to exercise their statutory authority then even if they can meet the deadlines they may not be able to become operational this fall.”