The West Virginia Constitution gives the state Board of Education overwhelming power over education, a fact reiterated by state Supreme Court precedent over decades.
That power means state lawmakers can’t change or block the unelected board’s policies.
The school board might even be able to legally ignore education laws that legislators tell it to enact — if Supreme Court justices rule in the future as they have in the past.
But on Thursday, the board, which previously opposed charter schools, nonetheless began complying with lawmakers’ order this summer to pass a policy allowing West Virginia’s first charter schools.
Board President Dave Perry said the panel could have ignored the law, but, “I don’t think that’s in the interest of the system, I don’t think it’s the interest in the relationship that’s always existed between the Legislature and the state Board of Education, which has been cooperative in the interest of students.”
In a voice vote with no nays heard, the board placed a draft policy out for a 60-day public comment period (the online comment portal should open soon at wvde.state.wv.us/policies). After the 60 days, and possible changes, the board will have to decide whether to pass the policy.
According to state Department of Education officials, the draft largely mirrors the charter school law the Republican-controlled Legislature passed.
Board member Debra Sullivan asked Sarah Stewart, who often represents the education department before the Legislature, what percentage of the draft came from state law.
“Please don’t hold me to this,” Stewart said, “but I would venture to say 75 to 80 percent of it is directly from state law, and that might be even lowballing.”
However, the draft takes a stance on an issue where legislators remained silent in their law: whether online charter schools will be allowed.
“While the charter school may include virtual learning opportunities to its students as part of its proposed program,” the draft says, “the proposed program shall not be a full-time virtual program.”
The Stanford University Center for Research on Education Outcomes has found that students who attended charter schools that primarily relied on online learning had significantly less academic growth than those who attended traditional public schools.
Education department Communications Executive Director Kristin Anderson had said the department wanted to make a draft of the policy public in October, but it wasn’t published online until Wednesday.
Sullivan usually has the most specific questions and comments on policies. She said she received the draft only recently and, before voting to put it out for public comment, she “hadn’t had the opportunity to really read this.”
“And because this is an important topic for us to be dealing with, it seems to me that it would be prudent to give ample time not only for us to read and digest, but also the public,” Sullivan said.
She suggested a 60-day public comment period, twice the normal length for the board’s policies, and her fellow board members concurred.
Two of the nine board members, Daniel Snavely and Jim Wilson, were absent for Thursday’s vote.
“This is a piece of legislation that, as we all know, was fairly controversial,” said state schools Superintendent Steve Paine. “So, I think we have an obligation to the Legislature to get it right.”
That legislation was the omnibus education bill (House Bill 206), which included legalizing up to three new charter schools in West Virginia every three years.
A more expansive version of the bill — an iteration that also would have given parents public money to private-school or home-school their kids — triggered West Virginia’s second statewide public school worker strike in as many years. The bill was greatly scaled back before passage.
The state’s main school unions have said they plan to sue over the bill, but the lawsuit has yet to materialize.
“Our attorneys continue to monitor everything and they will bring the suit at the appropriate time,” said Dale Lee, president of the West Virginia Education Association union.