Charter school organizations rally together in lawsuit against Department of Education in response to new grant criteria

A West Virginia charter school organization has joined a lawsuit opposing the Department of Education’s new criteria for federal grant funding of charter schools.

The West Virginia Professional Charter School Board joins the Michigan Association of Public School Academies (MAPSA) and the Thomas B. Fordham Institute in the action against the U.S. Department of Education (DOE) in response to its new rules that potentially limit the amount of funding that charter schools can receive from the federal Charter Schools Program. The new rules took effect on Aug. 5.

According to a West Virginia report, the “new criteria that the department may consider include … whether public schools near the charters are overcrowded, whether the charters collaborate with public school systems and how these charters plan to maintain ‘racially and socioeconomically diverse’ student bodies.”

The complaint, filed by MAPSA and Fordham on Aug. 8, alleges that the DOE is in violation of the Administrative Procedure Act on three counts: 

1. The DOE does not have the authority to issue the proposed new criteria. 
2. The new rule falls under the category of “arbitrary and capricious rulemaking.”  
3. The DOE did not “meaningfully respond” to comments from affected parties nor “appropriately extend the comment period.”

Additionally, they allege violation of the Constitution: “As the rule was issued without appropriate oversight from the President, it is invalid” under the Appointments Clause of Article Two.

“The result of these requirements is to deprive deserving students of innovative educational opportunities that would otherwise give them a lifeline out of chronically failing public schools,” wrote the Pacific Legal Foundation, which submitted the complaint on behalf of MAPSA and Fordham. “It is wrong to force these students into schools that won’t serve their educational needs. And it is unconscionable for an administrative agency to do so in defiance of federal law and abuse of the regulatory process.”

The Department of Education filed a motion to dismiss, claiming that MAPSA and Fordham do not have standing in the case, alleging they can’t establish “actual or imminent” injury that they have incurred from the rules. Additionally, the Department’s lawyers claimed that “the July 2022 notice does not require the department to implement the new priorities, application requirements and selection criteria in any future grant competition.”

The motion to dismiss was filed on October 14 in the United States District Court for the Western District of Michigan.