West Virginia court ruling sets temporary roadblock for school choice

West Virginia’s charter school program has been temporarily put on hold by a Kanawha County Circuit Court amid a lawsuit questioning the constitutionality of the state’s legislation.

Two teachers union employees sued the state in an attempt to halt the program. Judge Jennifer Bailey granted an injunction, which will temporarily halt the creation of any new charter schools until the lawsuit is finally settled. According to the judge, the lawsuit against the state is likely to succeed on the merits.

Under the law in question, the state-established Professional Charter Schools Board has the authority to approve new charter schools. The governor appoints board members who must then be approved by the Senate. The lawsuit alleges that this procedure is unconstitutional, arguing that the state constitution requires the consent of the school district or the majority of voters before a charter school can be approved.

“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,” Article 12, Section 10 of the West Virginia Constitution says.

Attorney General Patrick Morrisey, who represents the state in court, expressed dissatisfaction with the ruling.

“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,” Morrisey said. “The defendants should have been the state’s charter school board. Furthermore, the plaintiffs have not shown that the absence of an injunction will cause them irreparable harm.”

Morrisey said the state is exploring potential relief from the West Virginia Supreme Court.

Garrett Ballengee, the executive director of the free-market Cardinal Institute, told The Center Square that the last 18 months have shown that children benefit from different learning environments.

“For West Virginia, charter schools will be an important option for kids who need something different than the status quo,” Ballengee said. “Millions of children have benefitted from charter schools over the last 30 years, and it's important that West Virginians have the same access to those charter schools – those different learning environments – that kids have in nearly every other state.”

Ballengee said he hopes the ruling is only a temporary setback.