West Virginia justices hear arguments on charter schools bill

Michael Williams, senior deputy solicitor general for Attorney General Patrick Morrisey, pointed out that four schools that were authorized by the West Virginia Professional Charter Schools Board “are enrolling students right now, between about 1,200 to 1,300 ... Another is authorized to start operation this fall, while two more are authorized to start in fall 2024.”

“We cannot lose sight of the real impacts that decision in favor respondents would actually have on all these students here,” Williams told the justices.

Joshua Weishart is a WVU law professor from Morgantown representing those who have sued over whether the law creating the Charter School Board is constitutional. Weishart focused on what he indicated was the peoples’ right to have final say through basically an election referendum instead of a legislative act.

“The West Virginia Constitution of 1863 lasted only nine years. It failed, ultimately, because too many citizens were being disenfranchised,” which “ushered in the 1872 [West Virginia] Constitution to guarantee the right to vote. And Section 10 is the embodiment of that reform.”

The justices likely will issue an opinion on the Rule 20 argument by sometime before the end of the current term.

Cases selected for Rule 20 oral arguments are cases “involving questions of first impression ... issues of fundamental public importance ... constitutional questions regarding the validity of a statute, municipal ordinance, or court ruling ... inconsistencies or conflicts among the decisions of lower tribunals.”

The sides are split over that Section 10 of Article 12 in the 1872 West Virginia Constitution, titled “Creation of Independent Free School Districts.”

It reads that “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.”

Williams countered that Weishart “is concerned that people have no say. But, people will have no say if a validly enacted law by the people’s representatives and the Legislature is in fact struck down on the basis of an interpretation of a constitutional provision that has not been interpreted in this way ever before.”

The justices could decide the matter before them without ever delving into the constitutionality of the law creating the Professional Charter School Board.

Williams hit hard on that, saying that Weishart and the other attorneys suing over the charter school law named respondents who are without standing in the issue: West Virginia Senate President Craig Blair, House of Delegates Speaker Roger Hanshaw, and Wes Virginia Gov. Jim Justice.

“In attacking a widely used system for offering school choice, respondents have sued parties they cannot, sue sought relief the court cannot give, and built their case on theories of liability that cannot succeed,” Williams said. “Respondents deliberately chose not to sue the Professional Charter School Board, instead targeting three governmental officials whose work was already done. They then secured an order that offends our separation of powers as that order compels the governor to in turn compel the board to then comply with respondents’ view of the law.”

Two justices, Tim Armstead and Haley Bunn, asked questions that indicated they may be leaning toward Williams’ position. Chief Justice Beth Walker and justices William Wooton and John Hutchison didn’t tip their hands.

Armstead asked Weishart about the basis for holding elections in each district over whether a specific charter school could operate there.

“We have no statute that authorizes an election under the charter school legislation. So how would you mandate the governor to hold an election that isn’t authorized?” Armstead asked.

Weishart and Williams also disagreed over the way the language of Article 12, Section 10, should be read, and debated the way case law should apply.

Proponents of charter schools point to their growing popularity elsewhere, along with statistics that they say show students tend to receive a better education due to factors such as a lower teacher-to-student ratio.

As of last year, West Virginia was one of just seven states without charter school laws. The others were Kentucky, Montana, Nebraska, North Dakota, South Dakota and Vermont, according to the Center for Education Reform.

Charter school opponents have concerns that the system will negatively impact the public school education system in West Virginia by siphoning off talented teachers and administrators as well as competing for the limited supply of funding available for education.

West Virginia’s HOPE Scholarship provides about $4,400 in funding that can be used toward K-12 students’ tuition, homeschool and other expenses.

A total of about 2,200 applied in 2022, the first year for the scholarship, and about 4,000 applications had been received as of early May, according to West Virginia State Treasurer Riley Moore.