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CHARLESTON -- Nearly 20 months after it was first filed, the West Virginia Supreme Court of Appeals heard oral arguments Tuesday morning in a case that could decide the fate of the state's public charter school pilot program.
The five justices heard an appeal from Gov. Jim Justice, Senate President Craig Blair, R-Berkeley, and House Speaker Roger Hanshaw, R-Clay, of a December 2021 decision by Kanawha County Circuit Court Judge Jennifer Bailey granting a motion by two teachers union members for a preliminary injunction to block further implementation of the public charter school pilot program.
A February 2022 order granted by the Supreme Court stayed that decision, allowing West Virginia's public charter school pilot program to continue. Two active public charter schools and two statewide virtual charter schools are in the state with three more public charter schools authorized to begin next fall. The schools were approved and regulated by the Professional Charter School Board.
Sam Brunett and Robert McCloud, both teachers and parents, filed a lawsuit in September 2021 against Justice and legislative leaders 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.
Michael Williams, a senior deputy solicitor general for the Attorney General's Office, asked the justices to vacate the preliminary injunction and dismiss the case.
"The circuit court should have at least refused to issue a preliminary injunction. In fact, it should have dismissed this case outright," Williams said. "Because the circuit court refused to do either, it's now up to this court to set things right."
Williams argued Brunett and McCloud erred in bringing the case against the governor and lawmakers. While the Legislature passed House Bill 206 in 2019 and House Bill 2012 in 2020 setting up and tweaking the public charter school pilot program, and while the governor signed those bills and appoints members of the Professional Charter School Board, that board was the proper defendant in the original lawsuit, Williams said.
"The respondents cannot show how the petitioners caused the harms which they now complain, and they cannot show how the (petitioners) would have any power to cure those harms in the future," Williams said. "It is the Professional Charter School Board's choice to authorize charter schools without a county-wide vote that purportedly injures them."
Joshua Weishart, one of the attorneys representing Brunett and McCloud, argued bypassing approval by local county boards of education or a vote of county residents, the charter schools approved by the Professional Charter School Board violated the West Virginia Constitution.
"Section 10 secures a constitutional right to a basic form of local control of a public school," Weishart said. "It's a right to direct democracy, empowering the people - parents and taxpayers alike - to decide for themselves the composition of their local schools. Our state's highest elected officers are here seeking to subvert this right."
Weishart said the state Constitution prohibits the creation of independent school districts in a county without a majority vote of county residents.
"It's the height of hypocrisy for charter school advocates to demand more parental choice, and yet be content with a choice to divest all local citizens of a democratic choice over their local controls," Weishart said. "This action isn't anti-charter school. It's pro-democracy."
"The charter schools merely have recruiting territories that overlap with existing districts," Williams said. "They don't carve anything out of the districts. The districts are not in any way affected. There are no taxes that are imposed. The boards operate as they always have. The territories remain the same."
According to Williams, between 1,200 and 1,300 students are enrolled in the public charter schools.