Murmurs arose in a Charleston ballroom in September, about an hour into education attorney Howard Seufer Jr.’s presentation.
The crowd of county board of education members from across West Virginia had just been directed by Seufer to look at all the information the state’s new charter school law requires to be in any application to create such a school. The school board members would have to review all this if someone applied to create a charter.
“That’s a pretty tedious process,” Seufer said, referring them to his handouts. “It’s not just checking boxes.”
With West Virginia’s first charter schools allowed to open the school year after next, and with the possibility that a request to create one could appear in front of any of the 55 county school boards before the first application deadline in August 2020, Seufer delivered a warning.
“It is not possible for you to just say, ‘We’re not going to have any in our county and your application is denied,’ ” Seufer said. “That’s how it was sold, I think, to some people. ‘Oh, counties have complete control over this. Don’t worry about charter schools, if you don’t want one you don’t have to authorize it.’ That is not true.”
Seeing as charters draw students — and their associated state per-pupil funding — away from traditional public schools, county board members may be predisposed to reject them.
Other than during state takeovers — when the unelected state Board of Education can approve charters in a county and convert public schools into charters — elected county school board members will get to approve or deny applications to create charters.
The day Gov. Jim Justice signed the omnibus education bill (House Bill 206) into law, thus legalizing charter schools, the National Alliance for Public Charter Schools complained about the county school boards’ central role.
The group’s Todd Ziebarth said in a news release that “making them the only pathway for a high-quality applicant to receive approval ensures that there will likely be very few public charter schools in West Virginia, as county boards are not equipped or incentivized to approve high-quality applicants.”
But their approval or denial power isn’t simple or absolute.
The law and the draft state school board policy emanating from it require that county board members take numerous specific steps and research and consider specific information before making a decision. Mistakes could inadvertently lead to charters appearing in their counties.
Policy and pitfalls
Legal precedent gives the state board significant authority to use its policies to expand upon, and possibly even contradict, state education laws passed by the Legislature. So what the state board’s draft charter policy ultimately says is important, in addition to or despite what the new law may say.
The online public comment period on the proposed policy ends at 4 p.m. Jan. 14, and the state board is expected to approve the policy after that. You can read the draft policy and comment at wvde.state.wv.us/policies.
County board members ignoring steps in the law or policy or messing them up could trigger lawsuits and pro-charter provisions written in the law and policy. One provision automatically approves a new charter school if the county board makes no decision within 90 days.
“You don’t just say yes or no, you’ve got to give reasons and evidence and documentation to support your decision, you have to have proceedings in public, there’s all kinds of things you have to do,” Seufer said at that September West Virginia School Board Association conference.
If a county board simply said we don’t want charters, Seufer said an applicant may go to a judge and say, “Your honor, they had a mandatory duty to consider our application, to give it a thorough analysis, to give us an in-person interview, to have a public forum so that the public could have input. They had to give us a detailed analysis of our application, and give us an opportunity to supplement it with any information they think is lacking before they approved or denied it.”
Seufer said that if 90 days already passed by the time a judge ruled, the charter applicant might argue for default approval.
Randy Trautwein, a Wayne County board member who has practiced law for 40 years, said he was surprised by the complexity.
“What local school boards are being directed to do in this timeframe does not appear practical to me,” he said.
Once a county board does approve a charter application, the law and the draft policy set certain ways the county board must oversee the charter, and eventually decide whether it can continue existing.
The law and draft policy would allow county boards to, after approving a charter application, ask the state board to assume oversight of the school if the county itself lacks the capacity, as the draft policy puts it.
The whole oversight issue is complex, too.
Only nonprofits or groups seeking nonprofit status can apply to a county board to create a charter school or turn a regular public school into a charter.
Nonprofit is a very broad category. The state’s public colleges are nonprofits, and so are groups that have advocated for charter schools, like the National Alliance for Public Charter Schools and the Cardinal Institute for West Virginia Policy.
Charter schools would have their own boards. Those boards would be separate from the county board and would not be required to be elected, though they could be.
The draft policy requires at least two members of these charter governing boards — which could have many members — be parents of students at the charters.
It also, among other things, requires that a charter governing board “must collectively possess expertise in leadership, curriculum and instruction, law, human resources, and finance.”
These charter governing boards could also hire other nonprofit or for-profit entities, called education service providers, to run a school’s daily operations.
Devil in the details
The charter governing board has far more power and freedom in many areas than the county school board overseeing it, seeing as charters generally wouldn’t have to follow state laws or state board policies.
One big example — charters won’t be required to follow much of the personnel laws, like teacher certification requirements, other schools must follow.
The draft policy does say a charter application must at least demonstrate that the educators employed there “have relevant academic or occupational qualifications or experiences that reasonably indicate they will be competent to fill the positions in which they would be employed.” The draft doesn’t define “reasonably indicate.”
More examples — there’s nothing saying charters have to provide students transportation or serve them meals.
But charters’ actual freedom in such areas may nevertheless be limited by the county board, because the charter’s governing board and the county board have to agree on a contract.
Here, the draft policy attempts a balancing act. It says county boards must “ensure that charter schools comply with the terms of the charter contract and applicable federal law, state code, and [state board] policies.”
But the next sentence says that, “in performing its monitoring duties, the [county board] shall not unnecessarily inhibit the instructional and educational flexibility provided to charter schools [in the law and policy].” It even says county boards aren’t expected to provide the same monitoring and compliance support as they do for non-charter schools.
The negotiated contract is supposed to lay out how the charter school’s education of children will be judged — and allow the county board to shut the school down, or not renew it after a period of time, for not meeting performance goals.
Ziebarth said last week that he’d still like to see another path for approving charter applications, such as the state school board being able to directly approve them outside of state takeovers.
Regardless, he said, “The state has created a pretty good framework. I do not think it’s too burdensome and I think it’s necessary.”