Here I evaluate the three most convincing reasons that certain charter school provisions in SB451 are unconstitutional. Due to the non-severability clause, if any one of these three arguments prove successful, it would invalidate the entire law.
1. Charter school creation requires voter approval in each county.
Article 12, section 10 of the West Virginia Constitution provides
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.
Senate Democrats argued that this provision rendered SB451 unconstitutional on its face because the bill does not require voters to approve the creation of charter schools in their county school district.
Assuming for the sake of argument that a court would not consider a charter school(s) a school “district,” the question is whether it is an “organization” for purposes of section 10. The West Virginia Supreme Court has explained that “the word ‘organization,’ as used in the section … is modified by the words, ‘independent free school.’” Leonhart v. Board of Educ. of Charleston Indep. Sch. Dist., 170 S.E. 418, 420 (W. Va. 1933).
“Public charter school” is defined in SB451 as “a public corporate body, exercising public power through its governing board” as having “autonomy over decisions relating to finance, personnel, scheduling, curriculum, and instruction,” and as “independent of a county board.”
The bill further requires an application to establish a charter school to include a “proposed governance structure of the school, including…the organizational structure of the school that clearly presents lines of authority and reporting” with, among other entities, “any external organizations that will play a role in managing the school.” Charter authorizers must also ensure “professional standards” regarding “Organizational capacity and infrastructure.”
If this language does not satisfy the meaning of both “organization” and “independent” under section 10, it is difficult to imagine what else would.
Some exceptions are made, for instance, requiring a county board to authorize the conversion of a traditional public school into a charter or permitting county boards to authorize virtual charter schools. But this hardly diminishes a charter school’s independence under SB451.
The very few cases applying section 10 that would not alter this plain construction. On only one occasion has the West Virginia Supreme Court permitted the creation of a school without voter approval, when the Legislature by statute created Upshur County High School. The court decided section 10 was inapplicable, however, because the high school was not independent of the county board but was rather part of the “general scheme of education.” Casto v. Upshur Cty. High Sch. Bd., 119 S.E. 470, 472 (W. Va. 1923).
In response to Senate Democrats, Senator Trump said he believed SB451 was still constitutional and that, as a failsafe, the operative section of the state constitution was not section 10 but section 4, which authorizes the Legislature to “foster and encourage moral, intellectual, scientific, and agricultural improvement” and “make suitable provision…for the organization of such institutions of learning as the best interests of general education in the State may demand.”
One court decision supports Senator Trump’s argument, dating back to 1871, wherein the court reasoned that the Legislature had the power to establish the Wellsburg school district under section 4. See Kuhn v. Bd. of Educ. of Wellsburg, 4 W. Va. 499, 511 (1871). The trouble with that argument is that section 10 was added to the West Virginia Constitution a year later, in 1872, to nullify Kuhn.
That leaves the question of whether charter schools are “free,” which, in turn, raises another potential constitutional infirmity under a different section, Article 12, section 1. SB451 prohibits a charter school from charging “tuition or fees,” except it may charge “fees on the same basis and to the same extent as” traditional public schools. So, in that sense, charters are as free as any other public school.
In another sense, however, charter schools may be cost prohibitive for many students unless transportation is adequately provided. SB451 permits modifications to the school funding formula that would require “county boards to send 90% of their transportation allowance per pupil to the charter schools but there is currently no requirement for the charter school to provide transportation for their students.”
Senator Rucker indicated that “transportation details would be negotiated in a charter school’s contract with its authorizer.” But the uncertainty is potentially problematic because the state constitution “creates a strong presumption in favor of making everything that is deemed a necessary component to public education cost-free.” Randolph Cty. Bd. of Educ. v. Adams, 467 S.E.2d 150, 153 (W. Va. 1995). “Whatever items are deemed necessary to accomplish the goals of a school system and are in fact an integral fundamental part of [that] education must be provided free of charge to all students in order to comply with the constitutional mandate of a free school system.” Id.
In another case where school transportation was at issue, the court observed that “this fundamental right is meaningful only if school children are able to get to school,” and thus, “children have the right to adequate school board provided transportation.” Collins v. Ritchie, 351 S.E.2d 416, 418 (W. Va. 1986).
Indeed, so important is transportation to the right to education that “the refusal of the board to provide such transportation to certain children,” say, because “the road on which they live is not safe for a large school bus, and the board would have to purchase a new vehicle to traverse the road, denies those children equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution.” Potter v. Miller, 287 S.E.2d 163, 165 (W. Va. 1981).
2. Charter schools cannot be exempted from state supervision of constitutional adequacy mandates.
SB 451 exempts charter schools “from all statutes and administrative regulations applicable to the state board, a county board, or a school” with one notable exception: Charter schools must provide “a comprehensive instructional program that meets or exceeds the student performance standards adopted pursuant to §18-2E-5 of this code.” This exception is critical because 18-2E-5 has a constitutional dimension and lineage.
Briefly, Article 12, section 1 states “The Legislature shall provide, by general law, for a thorough and efficient system of free schools.” The West Virginia Supreme Court has held that a “thorough and efficient” education develops eight capacities in children, e.g., literacy, math skills, civics, self-knowledge, ethics. A thorough and efficient (or adequate) education, the court said, necessarily requires “good” facilities, teachers, and curriculum as well as accountability mechanisms and “high quality educational standards.” Pauley v. Kelly, 255 S.E.2d 859, 877-78 (W. Va. 1979).
To comply with these mandates, the State of West Virginia developed and consented to be bound by “A Master Plan for Public Education” in 1982. Among other things, the Master Plan identified high-quality standards, administrative and instructional practices, and accountability mechanisms. The court emphasized that the State Board of Education and Superintendent have
a duty to ensure the complete executive delivery and maintenance of a “thorough and efficient system of free schools” in West Virginia as that system is embodied in A Master Plan for Public Education which plan was proposed by agencies of the executive branch and found constitutionally acceptable by the Circuit Court of Kanawha County, and that plan will be enforced until such time as it is altered or modified by this Court or the circuit court.
Pauley v. Bailey, 324 S.E.2d 128, 135 (W. Va. 1984).
The Master Plan has never been fully implemented and, in fact, no significant progress was made to implement it for 12 years after it was adopted. Subsequent litigation, however, eventually induced the Legislature to enact 18-2E-5 in 1998.
Judge Arthur Recht, the trial court judge that had exercised jurisdiction to monitor the implementation of the Master Plan, described 18-2E-5 as “nothing less than a long overdue legislative educational epiphany”—the “statutory constitutional infrastructure to support the delivery of a durable thorough and efficient system of free schools.”
Of particular relevance to SB451’s charter school proposal, Judge Recht concluded that the “delivery of this system of public education as contemplated in West Virginia Code 18-2E-5 is dependent upon the legislature and executive branches of government fully implementing not only the letter but the spirit of 18-2E-5.”
To that end, 18-2E-5 states that the State Board—“the constitutional body charged with the general supervision of schools as provided by general law”—will continue implementing the Master Plan “to establish the standards and assess the performance and progress of students against the standards, and to exercise its supervisory responsibility to hold schools and school systems accountable and assist schools and school systems to build capacity and improve efficiency so that the standards are met.”
That constitutional responsibility cannot simply be delegated or assigned to a non-constitutional “West Virginia Public Charter School Commission,” as SB451 currently provides. The State agreed in the Master Plan and Judge Recht explicitly contemplated that the State Board would exercise that supervision.
Also, again, the State Board and Superintendent are legally (and morally) obligated to ensure the implementation of the Master Plan and more generally, “the constitutionally mandated educational goals of quality and equality.” West Virginia Bd. of Educ. v. Bd. of Educ. of the Cty. of Nicholas, 806 S.E.2d 136, 144 (W. Va. 2017).
The Legislature “may enact legislation to facilitate or assist” in this supervision “but whatever legislation is adopted must be in harmony with and not in derogation of the provisions of the constitution.” Id. at 145. Otherwise, “constitutional grants of authority…cannot be derogated or eliminated by the legislature.” Id. “Therefore, any statutory provision that interferes with the State Board of Education’s general supervision of free schools…is void.” Id.
It is worth noting that challenges to charters in other states have been successful when the state constitution vests powers in a state board or superintendent that cannot be usurped by the legislature. See, e.g., Board of Educ. v. Booth, 984 P.2d 639 (Colo. 1999).
There is a good case to be made that SB451 substantially interferes with the State Board’s supervision of the proposed charter schools in ways that were never contemplated and might actually conflict with the Master Plan and the controlling decisions of state courts regarding its duty to implement a thorough and efficient education.
3. Diverting funds to charter schools would be impermissible to the extent such diversions exacerbate inequalities in educational opportunity among all public school children.
SB451 requires county boards to pay charter schools 90% of their total basic foundation allowance (regular levy taxes + state aid) for each pupil enrolled in the charter school. According to the WVDE, sending these funds to charter schools, along with federal funds that must also follow the student, will “reduce the amount of funding available to operate existing public school programs.”
A reduction in funding will be more detrimental to property-poor or sparsely-populated counties unable to raise regular levy taxes to the new rates authorized by SB451. Any stratification between property-poor counties and property-rich counties able to absorb the reductions or raise taxes to offset them will call into question the equity and uniformity of the entire system.
Because “education is a fundamental, constitutional right in this State,” a legal challenge based on resulting disparities would be subject to strict scrutiny, meaning SB451 will be unconstitutional unless the creation of charter schools is “necessary to further a compelling state interest.” Kanawha Cty. Pub. Library Bd. v. Bd. of Educ. of Cty. of Kanawha, 745 S.E.2d 424, 440 (W. Va. 2013).
Here, the mere fact that “the diversion of funds is for a school purpose,” i.e., charter school operation, would not be determinative as to whether their implementation can withstand strict scrutiny. Id. at 442.
Nor would it matter that the state’s aid to the county may be unchanged after SB451; spending as well as funding inequities can constitute an equal protection violation under the state constitution. Id.
Although the equal protection clause does not require strictly equal per pupil expenditures across all county school districts, it does obligate the state to ensure “equality in substantive educational offerings and results, no matter what the expenditure may be.” Pauley v. Kelly, 255 S.E.2d 859, 865 n.7 (W. Va. 1979).
As Judge Recht would later explain in The Recht Decision, to achieve “equality in substantive educational offerings and results” the state must ensure “that school systems with greater educational needs and costs receive sufficient educational resources to meet those needs so that all children with similar needs are treated equally and receive a high quality education.” Therefore, the state has a duty to
- “eliminate the effects of unequal costs among counties …due to factors such as county isolation, sparsity,” etc.
- “eliminate the effects of unequal costs among counties of providing non-instructional services such as transportation and facility construction, renovation and equipment”
- “eliminate the effects of varying numbers of pupils among counties on the quality of county educational services by equalizing the ability of counties to have sufficient county administrative staff and curriculum supervisors”;
- “eliminate the effects of small school size on the ability to offer a broad range of education programs and services;” and
- “equalize the ability of counties to attract and retain sufficient high quality staff.”
If the state is falling short of meeting this duty and the current inequities are likely to be exacerbated by charter schools siphoning funds from traditional public schools, then a court would be strained to conclude that the creation of charter schools is necessary to fulfill a more compelling state interest.
As commendable as the purported goals of SB451 are for charter schools and the select children who will attend them (e.g., diverse public schools with high standards, higher student achievement, distinctive school curriculum, results-driven accountability), they do not outweigh the state constitutional commitment to equality of educational opportunity for all.