A Kanawha County judge has ruled, at least initially, against the opening of West Virginia’s first charter schools, which were all authorized by an unelected board.
Kanawha Circuit Judge Jennifer Bailey announced Monday morning she was granting a preliminary injunction and denying a motion filed by Gov. Jim Justice and other state officials to dismiss the case.
Those schools include one in Nitro, one near Morgantown, one in Jefferson County and two online schools open to students statewide. They were to open as soon as next school year.
Two plaintiffs who are fathers, public school teachers and union members sued, arguing that the following passage in the West Virginia Constitution made this method of charter approval illegal:
“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.”
Atop oversight from the Professional Charter School Board, the charters each have their own boards. But these boards also may be, and have so far been, unelected.
Bailey said Monday, “with respect to this constitutional provision, our Supreme Court has long recognized that the people have a right to speak before an independent school district may be created.”
Although this is just a preliminary ruling that doesn’t end the case, the judge also said, “I think that there is no question that there’s a likelihood of success [by plaintiffs] on the merits by purely looking at the constitutional provisions and the case law and the law that is specifically an issue in this House bill.”
The lawsuit was filed against Justice, Senate President Craig Blair, R-Berkeley, and House of Delegates Speaker Roger Hanshaw, R-Clay.
West Virginia Assistant Attorney General Sean Whelan, representing those state officials at a hearing last week, disputed the plaintiffs’ constitutional interpretation. He said the passage doesn’t “prohibit the existence of a school district within another school district.” He said past precedent has interpreted that provision “to prevent the carving out of territory from a previously existing district.”
On Monday, Whelan asked the judge to stay her ruling to immediately appeal to the state Supreme Court. Bailey declined. Whelan can still appeal, but the preliminary injunction will take effect in the meantime.
During a news conference focusing on a different subject, Attorney General Patrick Morrisey voiced support for charter schools and said: “We’re hopeful that this is going to be quickly reversed.
“We’re working internally now, in terms of the process, so we can actually get up to the high court and obtain a stay and also file a formal notice of appeal with the court. But we’re going to be moving fast. We’re hopeful. We believe we have the correct law on our side, and we’re going to keep doing this every time there’s a decision that’s wrong.”
Stride Inc., the publicly traded company formerly known as K12 Inc., is planning to run the daily operations of one of the two online charters.
“Parents in West Virginia, like their peers nationwide, seek choices for their child’s education,” a Stride spokesman said in an email. “Charter schools are one way to empower parents with options. While today’s ruling is disappointing, we look forward to following this case as it develops and providing support for our charter board client in West Virginia who will keep advocating for options.”
John Treu, board chairman of the in-person charter school planning to open near Morgantown, said of the preliminary injunction that “we believe it’s certainly going to be overruled ... but it doesn’t really impact us and our ability to open in the fall.”
Treu said the school, West Virginia Academy, could receive funding through the West Virginia Hope Scholarship if it opened as a nonprofit private school, rather than as a charter school.
The Hope Scholarship, a nonpublic school vouchers program, gives families who withdraw their children from public schools a currently estimated $4,600 per-student, per-year for private- and home-schooling expenses.
“We’ll just be funded through the Hope Scholarship, instead of through the charter school law,” Treu said.
Sam Brunett, one of the fathers and public school teachers who sued, also is the West Virginia treasurer for the American Federation of Teachers union.
“We’re in a situation of local control for masks, local control for curriculum, local control for inoculations, just about everything you hear from the state is based upon local control right now,” he said, “until it comes to building an actual building in a district, and they want that to be a state-controlled mandate.”