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The former King’s Way Christian Church building is the planned location of a proposed charter school in Nitro. The building previously housed Nitro High School.

CHARLESTON — Two fathers, who are also public school teachers and union members, are suing to stop charter schools from opening in West Virginia without county voters’ approval.

“A defining democratic virtue of public schools is that the people get to vote on matters relating to their operation — in school board elections, on proposed school levies, for state office holders and referenda, and, importantly, the constitution itself,” the lawsuit says.

In March, Republican state lawmakers significantly amended the charter school law that passed two years before, when the GOP didn’t yet have supermajorities in both legislative chambers. Republican Gov. Jim Justice signed the changes into law.

The changes included creating the West Virginia Professional Charter School Board.

This unelected board, with members appointed by Justice and then confirmed or rejected by the state Senate, can approve online charters that operate statewide and brick-and-mortar charters — even in counties where the local board of education is opposed to the school.

The four current Professional Charter School Board members are awaiting senators’ confirmation decision, even as the board members are currently reviewing applications to open charters.

The 2019 charter law, on the other hand, had allowed county school boards the final say on whether charters could open within their borders, unless the state school board had intervened and seized power from the local board.

After the changes took effect this year, applications to open seven charter schools were filed with the Professional Charter School Board, instead of local, elected school boards. No one applied to local school boards, despite the law still allowing that route.

The lawsuit, filed this week in Kanawha County Circuit Court, asks a judge to stop any charters from being created under the new Professional Charter School Board “absent a vote of county residents.” It argues part of the state constitution requires this voter approval.

The constitution says “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.”

The lawsuit is against Justice and the leaders of the state House of Delegates and Senate. House Speaker Roger Hanshaw, R-Clay, and Senate President Craig Blair, R-Berkeley, declined comment. The Governor’s Office did not return a request for comment.

Charter schools are generally free from having to follow state education laws or policies that apply to traditional public schools, especially personnel regulations. Instead, a charter’s internal board decides, alongside its “authorizer” — the entity, like the Professional Charter School Board, that approves the charter to open — which rules the school must follow.

One of the suing fathers, Sam Brunett, is a parent of children in Harrison and Marion counties and teaches at Morgantown High. A charter is trying to open near Morgantown, in Cheat Lake.

Brunett is also president of Monongalia County’s branch of the American Federation of Teachers union and is treasurer of the state arm of the same union.

The other father is Robert David McCloud, a parent of a Kanawha County student, teacher at Riverside High and member of the same union.

A charter is trying to open in Nitro, roughly 40 minutes northwest of Riverside High.

None of the board members of the group trying to open that charter live in Nitro. A majority are from Huntington.

Students who leave the Kanawha school system for the charter would reduce funding for the Kanawha school system because funding is largely based on enrollment.

Fred Albert, president of the American Federation of Teachers-West Virginia, said he recommended both men to Charleston-based attorney Jeffrey G. Blaydes, who often represents the union. The union isn’t itself a plaintiff, but Blaydes is among the attorneys representing the fathers.

Lawyers for the two parents also include West Virginia University law professor Joshua Weishart, who specializes in education law and policy, and attorneys from the nonprofit firm Mountain State Justice, which represented plaintiffs in the landmark Recht decision in West Virginia education.

Ryan Quinn covers education. He can be reached at 304-348-1254 or Follow @RyanEQuinn on Twitter.

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