High School Football

Temporary injunction now halts West Virginia’s method for establishing charter schools

A Kanawha circuit judge has granted a temporary injunction on West Virginia’s newest method for approving charter schools, saying a constitutional challenge stands a good chance of succeeding in the long term.

Kanawha Circuit Judge Jennifer Bailey

“There’s no question there’s a likelihood of success on the merits by looking at the constitutional provisions, the case law and the law specifically at issue in this House bill,” Judge Jennifer Bailey said during a hearing this morning.

A lawyer representing state officials described seeking an immediate appeal to the state Supreme Court. Supporters of charter schools have said even a preliminary injunction would knock a timeline for newly-approved charters off track, making it nearly impossible to provide classes as planned next fall.

The lawsuit is not about whether West Virginia can have charter schools, but instead whether they may be authorized through a newly-established Professional Charter Schools Board. 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.

“This ruling is not about whether our Legislature has the authority to enact legislation providing for charter schools. That’s not what this is about. This is an enactment, however, that’s contrary to the Constitution of this state,” Bailey said today.

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.  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. 

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.

The court 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.”

Judge Bailey agreed today that approvals by the Professional Charter Schools Board have the characteristics of an independent school district.

“This scheme and issue deprives the petitioners of their constitutionally-protected right to vote on charter schools authorized by the Professional Charter Schools Board,” Bailey said.

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.

The lawyer for the defendants had argued that clause in the Constitution actually addresses to days when school districts were established by townships and represented a safeguard against the Legislature carving out new districts. That argument suggested the clause has no bearing on current circumstances.

The lawyer for state officials had also contended the Professional Charter Schools Board should be the subject of a lawsuit, if anyone, because only that organization would have the power to act on an injunction.

And the defendants have said a preliminary injunction would knock the timetable for opening new schools this fall off course.

“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,” wrote lawyers for the state officials.

Patrick Morrisey

Attorney General Patrick Morrisey agreed with each of those points in a public statement today, calling the court’s decision “wrong.” He said his office would quickly move for a stay from the Supreme Court while also filing notice of an appeal.

“We’re deeply disappointed with the legally incorrect decision to place an injunction on that law,” Morrisey said during a press conference at his office today.

“We know that a Kanawha circuit court judge rules, if we believe they’re incorrect we’re going to take them up to the Supreme Court every time. We have great respect for the judges in our state, but we know there have been a couple of wrong decisions and we’re hopeful that this will be reversed.”

Garrett Ballengee

The executive director of the Cardinal Institute for West Virginia Policy, which has supported school choice issues, expressed confidence that the charter schools will prevail in the long run. The Cardinal Institute is directly associated with two of the members of the Professional Charter Schools Board.

“While this is disappointing, we feel it is a temporary setback. It has become increasingly common for school choice opponents to use the legal system to slow school choice down and introduce uncertainty into the process,” said Garrett Ballengee, the institute’s executive director.

“We have complete confidence that charter schools will be ruled constitutional in West Virginia, just as they have been in 44 other states and the District of Columbia. Millions of children across the United States have benefited from access to charter schools over the last three decades, and, hopefully, children in West Virginia will shortly, too.”

Fred Albert

The president of the American Federation of Teachers-West Virginia described this morning’s ruling as “a great preliminary win.”

“Our state Constitution requires a vote of the people in existing school districts before the creation of a new school district or organization,” said AFT-WV President Fred Albert. “The people of West Virginia foot the bill for our school systems; they deserve their constitutionally-granted voice in the creation of any new ones. “

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