WV charter schools bill differs from previous version

By Ryan Quinn, Education Reporter

West Virginia Republican lawmakers are again supporting legislation to allow the state’s first charter schools, after a bill failed to pass during last year’s session.

But unlike the version that the Senate passed in 2015, before the bill ran out of time in the House of Delegates, this year’s iteration would not place a cap of only two new charter schools per year for the first five years.

The new bill, which has House Education Committee Chairman Paul Espinosa as its lead sponsor and eight other Republicans as co-sponsors, also lists no specific protections for charter school employees and students from discrimination based on sexual orientation or gender identity. Also new is that the bill (HB 4011) would not let charter schools opt their workers into the state employees grievance procedure, which bans any discrimination not based on an employee’s job duties or agreed to by that worker.

The legislation would also create a new state entity called the West Virginia Public Charter School Oversight and Authorizer Board, which must appoint an executive director and can employ other staff.

Groups including parents, teachers, “community residents” and/or public and private nonprofits could apply to create a charter school or convert an existing traditional public school into a charter school. When presented with an application, county school boards would have the option to take on the role of vetting the proposal and either denying the application or approving it, thus assuming responsibility for overseeing the charter school.

A school board could also decline to consider the application, allowing the new state charter board to be the overseer and authorizer. But if a school board chose to vet the application and then denied it, the charter school could not appeal that decision, even to the state charter board.

According to the National Alliance for Public Charter Schools, an advocacy group, more than 40 states have charter schools, with Minnesota the first to pass a charter law in 1991. Charter schools, which receive taxpayer money but have more freedom from the regulations placed on other public schools, can effectively make teachers at-will workers, stripping them of the employment protections they enjoy. This flexibility in personnel and other areas is intended, supporters say, to spur innovation and increase student achievement.

In the 2009-10 school year, the latest year the National Alliance for Public Charter Schools has data available on its website, only about 12 percent of charter schools were unionized.

The push for charter schools comes as the West Virginia Legislature, now ruled by Republicans after eight decades of Democrat control, is pushing other bills that have angered unions: one that would repeal prevailing wage and another that would make West Virginia a right-to-work state, meaning employees in unionized workplaces would no longer be forced to pay dues to unions if they don’t want to be part of them, even though the union must represent and negotiate for every worker.

When asked if his charter schools bill was about weakening unions, Espinosa said no.

“This bill is about nothing more than providing local parents, local teachers, local principals and local school boards the same option that 43 other states and the District of Columbia have … if they believe that that education delivery model better meets the needs of the students that would attend that public charter school,” he said.

As for why charter schools would be unable to join the public employees grievance procedure, in which employees can have their complaints heard before the Public Employees Grievance Board, Espinosa said charter school workers would effectively be “private employees” of the schools, and said “it just really didn’t fit well” trying to apply state grievance guidelines to these workers. As for why the bill doesn’t list specific protections for lesbian, bisexual, gay and transgender employees and students, Espinosa said he feels the bill “makes it very clear that discrimination is prohibited in public charter schools just as they would be in any other public school in West Virginia.”

Espinosa’s bill does say charter schools would be “subject to the same civil rights, health, life and safety requirements applicable to noncharter public schools,” but at issue is what exactly the civil rights protections are in traditional public schools, and how those protections might be enforced with fewer personnel regulations and no access to the state grievance procedure.

Unlike for “protected classes” such as race and age, there is no overarching federal or state law banning discrimination against all individuals based on their actual or perceived sexual orientation or gender identity, leaving it up to local governing bodies like city councils and school boards to enact such protections.

Howard Seufer Jr., a Charleston attorney who has practiced school law for more than 30 years, has said that federal law applies to all schools that accept federal funds — including charter schools. A section of federal law in Title IX prohibits sexual harassment against gay or lesbian students that is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s program. As for state education policy, LGBT protections aren’t listed in an equal opportunity section regarding all students, employees and potential employees, but are in the harassment and bullying section protecting students.

When last year’s charter school bill arrived in the House Education Committee, the committee voted to remove the specific LGBT protections, substituting language reminiscent of Espinosa’s bill: “a public charter school may not discriminate against any person on any basis that would be unlawful if done by a noncharter public school.”

The amendment was proposed by Delegate Rick Moye, D-Raleigh, and Delegate William Romine, R-Tyler; Moye said he didn’t want to name classes of people for fear of omitting some students from the protection. Both men this year are co-sponsors of the controversial West Virginia Religious Freedom Restoration Act, which LGBT groups say could also allow discrimination against gays and lesbians.

Andrew Schneider, executive director of LGBT rights group Fairness West Virginia, said the problems with last year’s amended bill continue to persist in the new one.

“It leaves LGBT youth as targets,” he said, “and it’s a shame that LGBT youth have a become a political football in this climate.”

Reach Ryan Quinn at ryan.quinn@wvgazettemail.com, facebook.com/ryanedwinquinn, 304-348-1254 or follow @RyanEQuinn on Twitter.