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High Court Rules Against Charter Approval After WVDE Issues Proposed Rule that Concedes Case

Charleston, WV - The WV Supreme Court issued a decision denying West Virginia Academy's petition for writ of mandamus against the WVDE. The court decided that the WVDE did not have a duty to authorize the charter application regardless of whether there were deficiencies in the charter review process by the local boards of education. The court made no ruling as to whether the charter law was violated by the local boards as its ruling was exclusively based on whether the WVDE had a duty to step into the process.

"While we certainly do not agree with the High Court's decision, we must respect it and will deem the initial application window closed," said John Treu, President of the West Virginia Academy. "Of course, there's always next year and with positive changes to the law there is now a path to open a charter school with the State Professional Charter School Board as the authorizer so that the local school boards are not involved. I can't say for sure whether we will proceed under that process or not, but it's certainly still a possibility that our governing board can consider in the coming weeks."

This ruling comes on the heels of the West Virginia Department of Education (WVDE) issuing a peculiar set of proposed regulations in light of its position in the lawsuit. The primary issue before the court was whether the WVDE was required to act on the application after it was automatically approved due to the failure of the school boards for Monongalia and Preston Counties to meet together or take any combined action within the statutory 90 day review period. The two county boards voted to reject the application in separate meetings over a month after the expiration of the deadline for such decision had already passed.

The charter application was submitted to the WVDE on November 9, 2020 and Clayton Burch, the State Superintendent of Schools, responded with a letter stating as follows:

"I have reviewed the contents of the letter as well as the statutory language pertaining to charter schools and West Virginia Board of Education (WVBE) Policy 3300. Pursuant to Section 5.5 of Policy 3300, I believe potential authorizers have until November 30, 2020 to take action on a charter school application."

The State Superintendent was careful to describe the two counties as "authorizers" and not as a single authorizer, and he refused to act on the application as approved in December of that year. The WVDE opposed the charter school's lawsuit on the basis that it didn't have power to intervene as well as on the basis that the school board's processes complied with all of the deadlines and requirements under law, rendering the charter application rejected.

The WVDE has issued a new Policy 3300 with a very different view on these issues in mind. The new version of the policy indicates that the deadlines for reviewing a charter application do, in fact, run from the date a certified charter application is filed. Under this rule there would be no question that West Virginia Academy's application was already approved as of October 22, 2020. The rule is also very clear to state that when an application is filed for multiple counties, those counties must act together to review the application.

So the WVDE is now in the peculiar position of successfully defeating a mandamus action when it actually agreed with the opposition about the proper underlying review process. Ultimately, the court ruled that the WVDE didn't have a clear duty to intervene and so the local school boards will not be held accountable for any underlying flaws in the review process.

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