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Charter School Case Gets Hearing Before State Supreme Court

CHARLESTON – The West Virginia Supreme Court of Appeals heard arguments Tuesday in a case brought by the state’s first charter school applicant after two county boards of education denied its application.

The West Virginia Academy, a proposed charter school for the Monongalia and Preston county areas, sued the West Virginia Board of Education for not stepping in after the boards of education in those counties allegedly ignored timelines and denied the charter school application.

According to the 2019 law creating the state’s first charter school pilot project, counties have 90 days from the time a charter school application is submitted to approve or deny the application. If the 90-day timeline goes by with no action, the application is supposed to be approved by default.

The West Virginia Academy submitted its charter school application July 24, 2020. The Monongalia and Preston county boards of education met Nov. 30, 2020 and denied the application, well past the Oct. 22, 2020 deadline for a decision.

Attorneys for the state Board of Education and county school boards argued that rules developed by the Department of Education as required by the Legislature allowed them to set up their own deadline of Aug. 31 for charter school applications to be submitted, setting up Nov. 30 as the true 90-day deadline.

Deputy State Attorney General Kelli Talbott, representing the Department of Education, said the academy should have brought suit against the two county boards of education in circuit court instead of suing the state Board of Education, calling the issue a matter of “local control.”

“I think the Legislature was pretty clear by saying if nothing happens in the 90 days, (the charter school application) is considered approved and it goes to (the state Board of Education), and then it is under your rule 3300,” said Chief Justice Evan Jenkins in response to Talbott’s argument. “It’s difficult for me to understand why the clear statutory legislative intent is that that application then goes to you, and your posture to say, well, we don’t have any authority to act …”

Mark Sadd, attorney for the West Virginia Academy, likened the deadlines to a game of “whack-a-mole,” arguing that the state Board of Education had an obligation to step in when the county school boards decided to not follow the law.

“There is a clear duty of the West Virginia Department of Education to finalize, certify, whatever term the court would like to use, all submissions that are collected from around the state of applications that are conditionally approved,” Sadd said.

The Legislature passed House Bill 206 during a special session in 2019 dedicated to education reform. That bill created a charter school pilot program, allowing for three charter schools every three years. That law was changed during the 2021 legislative session with House Bill 2012, expanding the pilot program to 10 schools every three years, creating a statewide virtual charter school, and allowing for county-level virtual charter schools.


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