Lawyers representing West Virginia’s charter schools system argue that a circuit judge overstepped her authority by ordering a permanent injunction over how the schools are authorized.
The West Virginia Attorney General’s Office is leading an appeal of the lower court ruling and recently filed a 51-page brief, a key step in the process.
Lawyers for the Attorney General argue that the circuit court overstepped its authority by dictating legislative remedies and improperly blocking the expansion of the charter program. They want a permanent injunction to be reversed.
They wrote, “the circuit court’s permanent injunction cannot stand. The injunction usurps the Legislature’s remedial prerogative, reaches beyond the court’s territorial authority, and applies the law in an internally inconsistent manner.”
Late last year, Kanawha Circuit Judge Jennifer Bailey ordered a permanent injunction of West Virginia’s charter schools system.
The challenge to how the system operates was based on a section 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 plaintiffs in the original legal challenge contended that the state’s Professional Charter Schools Board created charter schools without the constitutionally required voter consent.
The lawyers for state officials counter that “this provision’s history shows that it was included in the 1872 Constitution to govern efforts to reshape existing school districts. It was not meant to limit new public schools that operate parallel to current district lines.”
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 in 2020 by the Monongalia and Preston county boards.
So 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.
Bailey’s order halted the authorization of new charter schools in West Virginia without voter consent. But it provided some latitude.
First, the judge enjoined the West Virginia Professional Charter Schools Board from authorizing any new schools without the consent of affected county voters. But this first step would not affect the operations of the eight charter schools already approved by the state oversight board, avoiding disruption to current students, families and educators.
Second, the order provides time for the Legislature and governor to respond by having special elections to get the consent of voters with charter schools proposed for their communities.
The order envisions “allowing a reasonable time for the Legislature and Governor to respond to the permanent injunction through either legislative-authorized or governor-called special elections to obtain the consent of affected county voters” in compliance with the state Constitution.
In the appeal, the lawyers representing state officials and the charter schools board contend that the lower court lacked jurisdiction over the governor and legislative leaders because they do not personally authorize schools.
And the filing asserts that charter schools are on solid legal ground because they do not “carve out” territory or taxing power from existing districts.
“West Virginia’s public charter schools are constitutional,” concluded the lawyers for the state.