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West Virginia Professional Charter School Board appeals ruling to state Supreme Court

(Photo Illustration - MetroCreativeConnection - Court Reports)

CHARLESTON – The West Virginia Professional Charter School Board gave attorneys for two Monongalia County residents a present Thursday: an appeal to the state Supreme Court of Appeals of a lower court ruling pausing the approval of new charter schools and putting current charter schools at risk.

Professional Charter School Board (PCSB) and several state officials filed a notice of appeal and a motion for stay with the Supreme Court to prevent a permanent injunction blocking approval of new charter schools from taking effect issued earlier this month by 8th Judicial Circuit Court Judge Jennifer Bailey.

In her ruling, Bailey enjoined the PCSB from authorizing any new charter schools without the consent of relevant county voters. The circuit court also said it would consider either a further injunction, writ of mandamus, or declaratory judgment against the existing charter school system if the Legislature takes no action in the upcoming session to provide a pathway for voters to approve existing charter schools. Bailey stayed her order for 60 days.

Attorneys for the PCSB contend that the circuit court erred regarding standing and legislative immunity, and they argue that charter schools do not infringe upon the territorial integrity of existing school districts.

“Charter schools are not ‘created’ ‘out of’ existing school districts’ territory. They operate in a defined ‘recruitment area’ that may encompass multiple counties,” wrote state Solicitor General Michael Williams representing the PCSB, House Speaker Roger Hanshaw, state Senate President Randy Smith, and Gov. Patrick Morrisey.

“Charter schools are designed to ‘improve student learning,’ promote ‘higher student achievement,’ and expand parents’ choice,” Williams continued. “The injunction frustrates all of these goals by throwing the system into a state of uncertainty–and perhaps closure. Those are substantial, real-world harms that outweigh Plaintiffs’ abstract voting interest.”

House Bill 206, passed by the Legislature in 2019 and amended in 2021 by House Bill 2012, created the current public charter school pilot project. The pilot program allows for the approval of 10 public charter schools every three years and a limit of two statewide virtual charter schools. State Code allows for the PCSB to authorize new charter schools, though counties can also authorize charter schools or create county-level virtual charter schools, but no county has done so.

Monongalia County residents Sam Brunett and Robert McCloud filed a lawsuit in 2021 against former governor and now U.S. Senator Jim Justice, R-W.Va., and legislative leaders, asking the court to declare the charter school law unconstitutional and instead allow county residents to vote for proposed charter schools. Bailey issued a preliminary injunction against the charter school law at the end of 2021, but the Supreme Court dissolved it and kicked the case back to Bailey’s courtroom.

In Thursday’s appeal, Williams said the plaintiffs lack standing to sue the governor and legislative leaders since they do not play a role in approving charter school applications. Williams also argued State Code provides legislative leaders legal immunity from lawsuits like this.

The PCSB and state officials also filed a motion to stay Bailey’s permanent injunction, arguing its enforcement would cause irreparable harm to the state, the public, and the thousands of students currently enrolled in charter schools. The Supreme Court has docketed the appeal and issued a scheduling order with a deadline to perfect the appeal by April 3 and the case likely to be heard after June 8.

Steven Allen Adams can be reached at sadams@newsandsentinel.com

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