In 2019, West Virginia became the 46th state (including D.C.) to enact a charter school law. The state has not yet approved a charter school, with the first application being denied in 2020. But less than two years after enactment, legislators in West Virginia are already considering major changes that would easily leave the state with one of the worst charter school laws in the country. The bill would undercut charter school accountability and fair and equitable access, two fundamental policy principles of high quality authorizing and, even with a few positive provisions like creating an independent charter board, NACSA is firmly against this bill.
Accountability, with One Hand Tied
House Bill 2012 would largely eliminate the power of authorizers to revoke a charter. This would effectively neuter the most important role of an authorizer: holding charter schools accountable for egregious violations of the public trust.
Revocation is rarely used, and is a drastic action for an authorizer to take: that’s why NACSA’s Principles & Standards recommend authorizers have clear, transparent policies on when and how revocation may be considered. Part of the charter school bargain, however, is accepting greater accountability in exchange for greater autonomy. Accountability is not only to students and families for academic outcomes, but also to the public as good stewards of public resources and trust. Schools that grievously abuse this trust must immediately face accountability.
With a five-year term, this amendment would leave authorizers largely powerless to intervene even in the most outrageous instances. The bill permits revocation in only one situation: when the health and safety of students is at risk. An amendment to permit revocation for non-compliance, financial mismangement, or extreme underperformance was rejected.
This change alone would be enough to make West Virginia’s charter law ineffective, but HB2012 gets even worse.
Egregious Civil Rights Policies
Far and away the worst provision of the proposed bill is one that would invite virtual charter schools to keep students with disabilities from enrolling. Under the bill, a student with an individualized education program (IEP) CANNOT enroll in a virtual charter school until the student and their guardian discuss with their IEP team whether enrollment in the virtual charter school is the right decision.
This flagrantly illegal barrier for students with disabilities to enroll in a charter school, a requirement imposed on no other students, undoubtedly violates federal law and will likely be struck down. But its inclusion in the bill in the first place is a shameful effort to undermine open, equitable access to charter school options for all students.
Risking Too-Big-To-Fail Virtual Charter Monopolies
The issues with the bill’s virtual charter school provisions don’t end there.
First, the newly created Professional Charter School Board (PCSB) “may authorize one statewide virtual public charter school which shall not count against the [statutory charter school limit].” Without a comma between “school” and “which”, this clause could be interpreted to mean that the PSCB can only authorize ONE virtual charter school, a preposterous provision giving one provider an effective monopoly in a bill aiming to increase choice and competition.
Even giving this clause generous reading, another provision would permit virtual charter schools to operate essentially without competition. Virtual charter schools applying to be authorized by a county authorizer must specify their “primary recruitment area,” a term not defined in the law but presumably not limiting enrollment only to the geographic bounds of the county. A virtual charter school applicant’s “primary recruitment area” cannot include any areas where another virtual charter school is already authorized to operate, essentially dividing the state up and keeping operators out of one another’s territory. Again, this provision violates the fundamental principle of choice and competition in the sector.
Further, while the bill does include an enrollment cap on virtual charter schools, it is simply too large and too vague to be effective. NACSA recommends that statute includes an initial enrollment cap, a growth rate cap, and a total enrollment cap, each of which work together to ensure a virtual charter school cannot rapidly grow before it has proven its quality or capacity, risking becoming too big to fail. Let Ohio and Oklahoma be lessons for West Virginia.
West Virginia’s motto is “Montani semper liberi” which translates to “Mountaineers are always free” in Latin. We don’t think the intent of the motto was to encourage freedom to discriminate or trounce charter school quality and accountability.
