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Charter school case gets hearing before state Supreme Court

Chief Justice Evan Jenkins hears arguments on the first day of the state Supreme Court’s Spring 2021 term. (Photo Provided)

CHARLESTON — The West Virginia Supreme Court of Appeals heard argument Tuesday in a case brought by the state’s first charter school applicant after two county boards of education denied its application.

The West Virginia Academy, a proposed charter school for the Monongalia and Preston County areas by West Virginia University professors, sued the West Virginia Board of Education for not stepping in after the boards of education in those counties allegedly ignored timelines and denied the charter school application.

According to the 2019 law creating the state’s first charter school pilot project, counties have 90 days from the time a charter school application is submitted to approve or deny the application. If the 90-day timeline goes by with no action, the application is supposed to be approved by default.

The West Virginia Academy submitted its charter school application July 24, 2020. The Monongalia and Preston County boards of education met Nov. 30, 2020 and denied the application, well past the Oct. 22, 2020 deadline for a decision.

Attorneys for the state Board of Education and county school boards argued that rules developed by the Department of Education as required by the Legislature allowed them to set up their own deadline of Aug. 31 for charter school applications to be submitted, setting up Nov. 30 as the true 90-day deadline.

Deputy state Attorney General Kelli Talbott, representing the Department of Education, said the academy should have brought suit against the two county boards of education in circuit court instead of suing the state Board of Education, calling the issue a matter of “local control.”

“Clearly when the county boards of (education) refused to recognize the default here that the (academy) wanted recognized, it could have brought legal proceedings against the county boards of education,” Talbott said. “The bottom line is the Department of (Education) doesn’t have the statutory authority to reach down into a local dispute.”

“The charter school bill … gave local control to the county boards of education to review these applications and decide whether or not the applications meet the criteria that’s been established,” Talbott continued.

“I think the Legislature was pretty clear by saying if nothing happens in the 90 days, (the charter school application) is considered approved and it goes to (the state Board of Education), and then it is under your rule 3300,” said Chief Justice Evan Jenkins in response to Talbott’s argument. “It’s difficult for me to understand why the clear statutory legislative intent is that that application then goes to you, and your posture to say, well, we don’t have any authority to act …”

“There is a gap there that I think the Legislature clearly intended that gap to be addressed by the Department of Education when you got a deemed-approved application,” Jenkins continued. “For you under your policies to say, ‘well, we don’t have any authority because our rules say we only engage when there’s three or more applications … it seems to me odd the department would take that position.”

Mark Sadd, attorney for the West Virginia Academy, likened the deadlines to a game of “whack-a-mole,” arguing that the state Board of Education had an obligation to step in when the county school boards decided to not follow the law.

“There is a clear duty of the West Virginia Department of Education to finalize, certify, whatever term the court would like to use, all submissions that are collected from around the state of applications that are conditionally approved,” Sadd said.

Justice Bill Wooten asked Sadd if the case was too late, considering there would be a tight turnaround to start the West Virginia Academy in time for the 2021-2022 school year.

“Isn’t it true that as we stand here today, this case is really moot because you cannot — even if we were to grant your writ — meet the other requirements of statute and the regulations to be ready to open a school on August 1 of this year,” Wooten asked.

“I respectfully disagree,” Sadd responded. “The act itself confers the ability on the Board of Education to fill in the gaps … Policy 3300 was given, and that can be taken away. They can modify policy. There is no one that would be harmed or prejudiced. There’s only one applicant in the State of West Virginia to operate a school. So, that could be modified because they have the power to do so.”

The Legislature passed House Bill 206 during a special session in 2019 dedicated to education reform. That bill created a charter school pilot program, allowing for three charter schools every three years. That law was changed during the 2021 legislative session with House Bill 2012, expanding the pilot program to 10 schools every three years, creating a statewide virtual charter school, and allowing for county-level virtual charter schools.

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