CHARLESTON, W.Va. — A Kanawha County judge has ruled that West Virginia’s system for approving new charter schools is unconstitutional unless voters in affected counties first give their approval—significantly reshaping the future of charter school expansion in the state.
In a sweeping 39-page order issued December 3, 2025, Circuit Judge Jennifer Bailey granted a permanent injunctionblocking the state’s Professional Charter School Board (PCSB) from authorizing any new charter schools without consent from county voters. The ruling concludes that the state’s 2021 charter school statute, House Bill 2012, violates Article 12, Section 10 of the West Virginia Constitution, which requires voter approval before creating any “independent free school district or organization.”
Bailey’s decision does not immediately shut down the eight charter schools currently operating. Instead, her order outlines a phased approach that gives state leaders — both in the Legislature and the Governor’s Office — time to craft a constitutional fix or submit existing charter schools to county voter approval.
Why the Law Was Ruled Unconstitutional
Judge Bailey found that the PCSB-authorized charter schools operate as independent school organizations, separate from county school boards, and therefore fall under the constitutional requirement for voter approval. The charter board, created by HB 2012, was given the power to authorize, oversee, and revoke charter schools without involvement from local school districts.
In her ruling, Bailey emphasized:
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Charter schools “are free school organizations” funded by the state.
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They operate independently from county school boards — a key constitutional trigger.
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No charter school created by the PCSB has ever been approved by local voters, despite drawing students and funding from county school districts.
Because of this, she concluded that HB 2012 directly conflicts with the Constitution:
“Plaintiffs have prevailed on the merits of their claim that provisions of House Bill 2012… violate Article 12, Section 10.”
What the Ruling Does Now
Bailey’s order immediately:
✔ Blocks authorization of any new charter schools statewide
PCSB is prohibited from approving future applications unless affected counties’ voters approve them first.
✔ Allows current charter schools to keep operating — temporarily
The judge agreed with plaintiffs’ proposal to avoid disrupting current students mid-year. Future steps will depend on whether the Legislature or Governor establish a lawful process for voter consent.
✔ Gives lawmakers time to respond
If the Legislature or Governor fail to create a constitutional mechanism — such as special elections — the court may later consider additional injunctions or even mandamus orders compelling compliance.
✔ Stays enforcement for 60 days pending appeal
The judge granted defendants’ request to pause enforcement while they appeal the ruling.
Potential Consequences for Existing Charter Schools
Bailey signaled that if state officials do not establish proper voter-approval procedures:
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A second-stage injunction may halt operations of charter schools already open.
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A third-stage remedy could compel the Governor to call special elections or require the Legislature to pass corrective legislation.
However, she noted that even if charter schools were temporarily closed, students would still have access to public education through traditional county schools, reducing claims of irreparable harm.
State Leaders May Face Mandamus Orders
A notable portion of the order addresses whether courts can compel the Governor or Legislature to act when constitutional duties are at stake. Bailey concluded:
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The Governor can be compelled to call special elections if required by the Constitution.
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Legislative leaders can be ordered to consider corrective legislation.
Though she postponed these actions for now, she made clear that judicial intervention may follow if the political branches fail to comply.
Legislature’s Attempt to Shield Itself Rejected
Bailey also rejected a 2022 statute that attempted to give the Legislature immunity from lawsuits challenging the constitutionality of its enactments, calling the law an unconstitutional intrusion on judicial authority and due-process rights.
What Happens Next
The parties are expected to take the case to the Supreme Court of Appeals of West Virginia, which previously heard procedural portions of the case in 2023. The 60-day stay allows the appeal to move forward before the injunction takes effect.
If Bailey’s order is upheld, major structural changes to West Virginia’s charter school system — including local voter referendums — may become mandatory before any further expansion.
