NC Supreme Court could blunt local government efforts to block charter schools

A case at North Carolina’s highest court could offer charter school operators more protection against hostile local governments.

That’s the goal of plaintiffs in Schooldev East v. Town of Wake Forest. The N.C. Supreme Court agreed in April to take the case.

A 2-1 ruling from the N.C. Court of Appeals in July 2022 upheld Wake Forest’s decision to block a charter school proposed as part of a new housing development. By the time of the Appeals Court’s ruling, charter school operators already had found another site for the K-12 school, Wake Preparatory Academy.

Yet the court case continues. Critics argue that Wake Forest abused its authority to block the school in 2020. Town officials cited a lack of pedestrian and bicycle “connectivity to adjoining neighborhoods.”

“Unmoored from the record and unburdened by findings of fact, the Town has exceeded its statutory authority in this case in a multitude of ways,” according to a July 7 brief from Schooldev’s lawyers. “It relied on the wrong set of local regulations when denying Schooldev’s subdivision. It violated the statutory prohibition on requiring off-site improvements. Faced with undisputed record evidence that Schooldev complied with the local sidewalk requirement, the Town denied the subdivision and site plan anyway.”

Plaintiffs argue that Wake Forest leaders based their decision on factors beyond legitimate town regulations.

“The main opposition to Schooldev came from charter school opponents, and the town Board of Commissioners made public statements indicating they agreed with the opponents’ concerns,” the brief continued. “The Town’s vague and shifting explanations for the denials have done little to ease fears that the Town made the decision with an unstated antipathy for charter schools.”

The N.C. Coalition of Charter Schools is watching the case closely. Charter school founder Richard Vinroot, a former Charlotte mayor and Republican gubernatorial candidate, helped file a legal brief for the coalition. It supports Schooldev’s case.

“The issues implicated by this case are of critical importance, as they may affect the standards and the sufficiency of evidence required by local governments to deny or grant petition applications relating to the development of charter schools,” according to the coalition’s brief. “The interpretation of the statutes and evidence in this case will impact the consideration of permit applications related to charter schools throughout North Carolina.”

The coalition focused attention on the dissent from state Appeals Court Judge John Tyson. He argued that Wake Forest commissioners “‘violated their oath to be an impartial decision maker in a quasi-judicial proceeding’ when they improperly denied Schooldev’s permit applications.”

“It is important to keep in mind what the Town’s decision should not have been about: the merits of charter schools or school choice,” coalition lawyers wrote. “Yet, the record demonstrates that the Town’s decision to deny Schooldev’s permit applications was based on a desire to prevent a new charter school from being built — an issue that was not before the Town and over which the Town is supposed to have no role.”

“After a quasi-judicial hearing where Schooldev and the Town’s own staff presented evidence demonstrating that Schooldev’s applications complied with all applicable ordinances, the Town engaged in a delayed deliberation that had little relevance to the record evidence and gave improper credence to the opinions of a few citizens who spoke against the proposed charter school,” the brief continued.

“The Town got it wrong in every respect — on the procedure, the evidence, and the law,” coalition lawyers wrote. “And the Court of Appeals got it wrong by upholding the Town’s decision. As the record and Judge Tyson’s analysis demonstrate, Schooldev met the requirements to secure the permits it requested.”

“If permitted to stand, this decision would allow opponents of charter schools and local governments to circumvent the legislature’s mandates in order to improperly block the creation of new charter schools,” the coalition warned.

Initially authorized in 1996, more than 200 public charter schools operate now in North Carolina. Charters served more than 137,000 students last year. That’s roughly 9% of the state’s public school enrollment. Charter enrollment grew by 19% from 2019 to 2022, according to a report this spring from the N.C. Department of Public Instruction.

A local government might raise a legitimate objection to siting a charter school in a particular location. But there’s no good reason for local zoning and regulatory authority to offer charter school opponents a heckler’s veto.

The state Supreme Court’s approach to the Wake Forest dispute could help determine the future course of charter school growth in North Carolina.

Mitch Kokai is senior political analyst for the John Locke Foundation.