Ruling blocks opening of public charter schools in West Virginia

CHARLESTON — The implementation of public charter schools in West Virginia is on hold after a judge granted an injunction Monday blocking the law until a further review.

Kanawha County Circuit Court Judge Jennifer Bailey issued an order Monday morning during a virtual hearing granting a request by two teachers union members for a preliminary injunction to block further implementation of House Bill 2012, which made changes to the state’s public charter school pilot program.

Bailey heard arguments last week in a virtual hearing on motions for and against a preliminary injunction.

“With respect to there being no other adequate remedy under law, there is no other remedy to cure a constitutional violation other than the type of relief the petitioners seek in this proceeding,” Bailey said. “After careful consideration…I am granting the motion of the petitioners for a preliminary injunction.”

Sam Brunett and Robert McCloud, two teachers with children in the state’s public school system, filed a lawsuit in September against Gov. Jim Justice, Senate President Craig Blair, R-Berkeley, and House Speaker Roger Hanshaw, R-Clay, asking the court to allow county residents to vote for proposed charter schools, block the Professional Charter School Board from approving charter schools and declare the charter school law unconstitutional.

Brunett and McCloud, members of the West Virginia chapter of the American Federation of Teachers, are represented by public interest law firm Mountain State Justice and Joshua Weishart, a professor of law at West Virginia University.

HB 2012 expanded the maximum number of public charter schools in a three-year period from three to 10 schools, allowed for two statewide virtual charter schools with an enrollment cap of 5% of statewide headcount enrollment each school year and allowed for county virtual charter schools with an enrollment cap of 10% of total county public school enrollment.

The bill also created the Professional Charter School Board as one of four authorizers for charter school applications along with a county board of education, two county boards of education and the state Board of Education under certain circumstances.

The board approved applications in November for three brick-and-mortar public charter schools and two statewide virtual charter schools. Those schools are slated to open during the next school year and have several statutory deadlines over the next several months to complete certain tasks.

Speaking Monday, Bailey said there is no question that public charter schools violate Article 12, Section 10, of the West Virginia Constitution, which states that “independent free school district(s)” cannot be created without the consent of the school district or voters in that district.

“This ruling is not about whether our Legislature has the authority to enact legislation providing for charter schools. That’s not what this is about,” Bailey said. “This is an enactment, however, that is contrary to the Constitution of this state and the petitioners have a right to seek redress of legislation that is contrary to the Constitution.”

Bailey also denied a motion filed by the West Virginia Attorney General’s Office to dismiss the lawsuit. Sean Whelan, an assistant state attorney general representing Justice and the Legislature, asked Bailey to rule on a motion to stay the injunction, which Bailey denied, setting up an appeal to the West Virginia Supreme Court of Appeals at a later date.

Attorney General Patrick Morrisey released a statement later Monday expressing his disappointment in the decision.

“The court’s granting the preliminary injunction is wrong because the charter school laws — like all laws passed by the State’s duly elected legislature — are presumed to be constitutional, and the ruling also violates the separation of powers since the defendants in this matter are not the ones who are taking the action to which the plaintiffs object,” he said.


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