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Charter schools awaiting Supreme Court order on lifting injunction

CHARLESTON — If the West Virginia Supreme Court of Appeals doesn’t rule on a motion to stay a lower court decision blocking approved public charter schools from opening next year, that could push their start dates to the 2023-2024 school year unless the Legislature can move up key dates. The House of Delegates in a 75-20 vote passed House Bill 4019 relating to deadlines for public charter schools. The bill now heads to the state Senate.

HB 4019 moves the deadline for public charter schools to have a contract between the school’s governing board and the state Professional Charter School Board from March 15 to May 15. It also moves the primary round of public charter school enrollment, applications, or lottery from April 15 to May 15. The bill only applies to 2021.

The moving of deadlines comes as public charter school supporters await a decision by the Supreme Court to issue a stay of a decision in December by Kanawha County Circuit Court Judge Jennifer Bailey granting a request by two teachers union members for a preliminary injunction to block further implementation of the public charter school pilot program. Attorney General Patrick Morrisey appealed the ruling to the Supreme Court.

“There is a court injunction at the present time that the (charter schools) are waiting on the Supreme Court to rule on that,” said House Education Committee Chairman Joe Ellington, R-Mercer, a non-voting member of the Professional Charter School Board. “It just gives them two months extra to be able to get things in order so they don’t miss that deadline of March 15 for this coming school year.”

The Professional Charter School Board virtually met Tuesday morning to discuss the lawsuit in executive session. The board, which was not party to the original lawsuit, filed a motion to intervene in the case at the beginning of February.

“Absent a stay of the injunction order, the opening of charter schools for the 2022-2023 school year is in jeopardy,” wrote Assistant Attorney General William Ballard, representing the Professional Charter School Board.

Sam Brunett and Robert McCloud, two teachers with children in the state 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 the public interest law firm Mountain State Justice and Joshua Weishart, a professor of law at West Virginia University.

Ballard, writing in the board’s motion to intervene, said Brunett and McCloud filed suit against the wrong parties. As the Professional Charter School Board falls under the supervision of the state Board of Education and the governor has no statutory authority over the Board of Education beyond appointing its members, Ballard said the circuit court’s injunction is not binding on the charter school board.

“Because the PCSB is not an agent of the governor, in privity with the governor, or otherwise acting in concert with the governor, the injunction order cannot bind the PCS and was issued with want of jurisdiction over the PCSB,” Ballard wrote.

Seven applications were filed for the public charter school pilot program last year. The pilot project was created in 2019 by House Bill 206 and later amended by House Bill 2012 in 2021.

The board approved applications for the state’s first public charter schools in November: Nitro Preparatory Academy in Kanawha County, Panhandle Preparatory Academy in Jefferson County and West Virginia Academy in Monongalia County. Board members approved applications for Virtual Preparatory Academy of West Virginia and Mountain State Learning Solutions, also called West Virginia Virtual Academy.

The West Virginia Academy posted on its website last month that its enrollment application period was opening Feb. 15. The charter school also released job postings and held a virtual meeting with potential parents that same day.

“These processes are being conducted approximately one month later than originally anticipated as a result of delays arising from two lawsuits filed in Kanawha County by special interest groups,” wrote John S. Treu, president and board member for the school. “Our organization continues to believe these lawsuits lack any merit and we look forward to the charter law being upheld by the West Virginia Supreme Court of Appeals.”

(Adams can be contacted at sadams@newsandsentinel.com)

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