A case about how charter schools are authorized in West Virginia is ready to be considered by the state Supreme Court.
The case has matured for consideration by the court, meaning the court can now choose to decide the case on the merits without oral argument or set the case for oral argument and then decide it.
The most likely time period for the oral arguments would be this fall.
The court adjourned its winter and spring term on June 11. The next regular term of court does not begin until Sept. 2, when it will resume hearing oral arguments in selected cases.
When the court does resume it will be with a reconstituted lineup of justices. Bill Flanigan and H.L. Kirkpatrick were sworn in this month after winning election to unexpired terms. They will join Chief Justice Haley Bunn and justices Bill Wooton and Charles Trump.
This past January, the Supreme Court agreed to halt a circuit court order about West Virginia’s charter schools system while the case is reviewed.
Justices are reviewing a permanent injunction order by Kanawha Circuit Judge Jennifer Bailey about how charter schools are established in West Virginia.
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.
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 court challenge 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.”
Judge Bailey’s order was to halt the authorization of new charter schools in West Virginia without voter consent. But it provides 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. No such legislation was considered during the past regular session.
Third, if the Legislature and governor don’t act, then the judge would consider yet another permanent injunction to enjoin the West Virginia Professional Charter Schools Board from permitting continued operations of the eight charter schools already authorized without voter consent.
The initial legal challenge was brought by Sam Brunett of Marion County and Robert McCloud of Kanawha County, both parents and educators.
Their lawyers filed a brief in the Supreme Court review May 18, contending that defenders of the current system of establishing charter schools are undercutting a constitutional right to direct democracy.
“Suspiciously refusing to let the People vote, their representatives here defend a law that subverts the People’s will by enabling independent charter schools with unelected boards, managed by private, for-profit entities, to take taxpayer funds without any direct accountability to
the taxpayers,” wrote the lawyers for the citizens challenging the charter school system.
The state’s Professional Charter Schools Board and state officials being represented by the state Attorney General replied in a June 8 brief.
They said the circuit court ruling risks the goals of the schools to improve student learning, promote higher student achievement and expand parents’ choice. And they said the original lawsuit misinterpreted constitutional intent.
“The Court should vacate and remand with instructions to dismiss,” wrote the lawyers for the state.