High Court Awards Charter School A Rule Against the WVDE and Mon County BOE, Schedules Oral Argument

Yesterday the West Virginia Supreme Court of Appeals awarded WV Academy a rule setting the oral argument date and taking other key actions in the academy's lawsuit against the WVDE. The Monongalia County Board of Education was added to the lawsuit as a co-respondent with the WVDE in the Court's ruling. Based on a review of the arguments from both sides, by a 4-1 decision the Court issued the rule in a manner that shifts the burden of proof to the WVDE and Monongalia County BOE. The specific language of the rule is as follows:


“Upon consideration of the petition, the appendix record, and all briefs filed, the Court is of the opinion that a rule should be awarded. It is ordered that a rule does issue commanding and directing the [WVDE and Mon County BOE], to show cause, if any they can, why a writ of mandamus should not be ordered.”


While the final outcome of the action is far from settled, this rule does appear to suggest that the Court was not persuaded by any of the various arguments raised by the WVDE and the Mon County Board of Education that filed briefs in opposition to the mandamus action. The full text of the order is attached to a MetroNews article covering the ruling. Additionally, because the case is now scheduled for consideration and oral argument under Rule 20, the court will almost certainly issue a full published legal opinion that will set precedent that will impact other charter school applicants throughout the state and could provide guidance for authorizers of charter schools on the proper procedures for reviewing a charter application.


The Supreme Court took other actions in issuing this rule including granting the Monongalia County Board of Education's motion to become a party to the lawsuit and also accepting the Amicus Brief filed by a concerned parent. The mandamus action is fully briefed and the stage is now set for the oral argument in the proceeding, which will be held on May 4, 2021. The timing of the oral argument combined with the fact that the case was taken up on an expedited basis suggest that the Court could likely rule on the case during this session, which ends in June. If the action is successful, West Virginia Academy would be poised to open its doors in the Fall of 2022.

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