West Virginia Charter School Board Joins National Lawsuit

[The Intelligencer] West Virginia Charter School Board Joins National Lawsuit

CHARLESTON – West Virginia’s Professional Charter School Board is joining with other state charter school groups in a federal lawsuit over how the federal government provides grant funding.

The Professional Charter School Board signed onto an amended complaint filed Nov. 6 in the U.S. District Court for the Western District of Michigan, joining the Michigan Association of Public School Academies, the Thomas B. Fordham Institute, the Delaware Charter Schools Network and the North Carolina Coalition for Charter Schools.

The groups, represented by the libertarian Pacific Legal Foundation, are suing U.S. Department of Education Secretary Miguel Cardona and Ruth Ryder, deputy assistant secretary for policy and programs in the department’s Office of Elementary and Secondary Education.

The groups are challenging an administrative rule for federal grant programs for state charter school programs. They allege these new rules are designed to harm or decrease the number of charter schools nationwide.

The Pacific Legal Foundation is seeking an injunction blocking the implementation of the rule and a declaratory judgment setting aside the rule.

“The department’s attack on the charter school program it is tasked with administering is unlawful,” wrote Pacific Legal Foundation attorney Caleb Kruckenberg. “Not only does the department lack the authority to issue any new criteria; the proposed factors will punish the most successful charter school programs, particularly in school districts that enroll large numbers of minority students.

“All the while, the rule comes from an agency employee and lacks even the blessing of a properly-appointed officer of the United States,” Kruckenberg continued. “The Department’s sneak attack on the charter school program, and on the students caught in the middle, must be set aside by this court.”

The federal Charter School Program, established in 1994 under former President Bill Clinton, provides grant funding for new and existing state charter school programs. The program was expanded in 2015 under former President Barack Obama.

Earlier this March, the Department of Education filed a new administrative rule detailing how it planned to award more than $440 million appropriated by Congress for the Charter School Program. During a public comment period, the Pacific Legal Foundation took issue with the proposed rule, accusing the process as invalid.

“Notably, the comment objected because the department ‘has no authority to issue additional selection criteria,’ as the act ‘includes no provision allowing the secretary to designate additional criteria or priorities for awarding grants,'” Kruckenberg wrote. “The comment also argued that the ‘proposed rule was not issued by an officer of the United States, and thus any final rule that might result would proceed from an invalid action.'”

New requirements for charter schools to receive grant considerations include developing collaboration plans with public schools and proving a need in the community for the charter school, such as over-enrollment in the local public school system. Charter schools also must not exceed the racial balance that exists in the communities where the schools are.

The PCSB has been in existence for more than a year now, created by House Bill 2012 during the 2021 regular session. House Bill 206 passed by the Legislature in 2019 created the state’s first public charter school pilot program.

West Virginia’s first charters, the Monongalia County-based West Virginia Academy and the Eastern Panhandle Preparatory Academy, opened brick-and-mortar schools earlier this fall with two additional schools likely being approved by the PCSB next week. The state also opened two virtual charters, the West Virginia Virtual Academy and the Virtual Preparatory Academy of West Virginia. But the PCSB has not received a federal CSP grant.

“Without access to CSP funds, public charter schools in West Virginia have a real risk that they will not be able to operate or open as planned,” Kruckenberg wrote. “The new rule will disadvantage some or all of the schools overseen by WVPCSB in competition for CSP funding because school districts in West Virginia are not over-enrolled, and traditional public schools in the relevant communities have not shown a willingness to cooperate with charter school programs.”

“The new rule will also disadvantage the schools overseen by WVPCSB concerning the grading of the ‘quality of the needs analysis’ requirement as they will not be able to demonstrate a ‘sufficient demand’ for the charter schools based on enrollment numbers in existing public schools,” Kruckenberg continued. “Many of the traditional school districts in West Virginia have ample space for new students.”


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