CHARLESTON – A circuit judge says voters must approve the creation of new charter schools.
In a 39-page order filed December 3, Kanawha Circuit Judge Jennifer Bailey issued a permanent injunction saying voters in a county or counties where a charter school will operate must give approval for independent charter schools.
Bailey
But Bailey’s order does grant a 60-day stay to allow for the appeal process, and it phases in the permanent injunction. She did enjoin the West Virginia Professional Charter Schools Board from approving any new schools without voter consent, but that doesn’t affect the eight charter schools already operating under the board.
“Indeed, (House Bill) 2012 was designed to make PCSB charter schools as independent as they could possibly be and still be called public schools-that was the whole point, to evade county school board authorization and supervision, as the court’s factual findings make clear,” Bailey wrote. “Wherefore, because HB 2012 approves the creation of PCSB charter schools-as independent free school organizations-without the consent of a majority of voters in the county or counties in which PCSB charter schools are created and will operate with their own jurisdiction and governing boards, the court finds and concludes that plaintiffs prevail on the merits of establishing that HB 2012 violates article 12, section 10 of the West Virginia Constitution.”
Bailey’s order also provides time for special elections as well as legislative or executive action. But if no such action is taken, Bailey said she could issue another permanent injunction to keep the board from continuing to operate the eight schools previously authorized without voter approval.
Sam Brunett from Marion County and Robert McCloud from Kanawha County filed the lawsuit in 2021. The pair, who are parents and educators, alleged they would suffer irreparable harm if charter schools were allowed to be created without the approval of voters. The lawsuit challenges the legality of the approval process. An additional plaintiff, Jaclyn Sanchez, later was added to an amended complaint.
In 2019, a new state law (HB 2012) allowed charter schools and said the schools would receive financial support from the state’s public education system. In 2020, the state Legislature created the charter school board that was to authorize new charter schools.
The lawsuit claimed the charter school board was unconstitutional, focusing on a section of the state Constitution that says “no independent free school district, or organization shall hereafter be created, except with the consent of the school district or districts out of which the same is to be created, expressed by a majority of the voters voting on the question.”
The state argued that charter schools are not independent school districts, meaning the state has the authority to create them.
Kanawha Circuit Court case number 21-P-340
