West Virginia justices consider constitutionality of public aid to students leaving public schools

West Virginia justices are deciding whether a state-funded scholarship for students leaving public schools meets the state Constitution’s requirement for a thorough and efficient school system.

Oral arguments over the Hope Scholarship are set for about 11:30 a.m. Tuesday before the West Virginia Supreme Court. Kanawha Circuit Judge Joanna Tabit earlier halted the scholarship, concluding that the program creates “an incentive to leave the public school system, reducing its enrollment and

More than 3,000 students had already been awarded the scholarship, which would have been used for education expenses this fall. Without the money, they had to make other arrangements.

The hearing at the Supreme Court will explore the arguments of parents who want the scholarship money for their families’ unique education needs versus other parents who say the program will diminish the public education system.

What’s the scholarship? 

The Legislature passed and the governor then signed a bill establishing the Hope Scholarships in 2021, providing money for students leaving the public school system to use for a variety of financial costs.  West Virginia’s program also allows students old enough to enter the school system for the first time to be eligible immediately.

The conservative publication the Federalist concluded “West Virginia just passed the nation’s broadest school choice law.” That’s because eligibility in other states with similar programs is more narrowly defined.

Families can use the accounts for a range of expenses like homeschooling, private school tuition, online learning, after-school or summer-learning programs or educational therapies.

The scholarship amount varies each school year. For the 2022-23 year, that amount was to be about $4,300

So the total amount of public funding so far would be about $13 million.

Over time, that amount would increase. A fiscal note for the Legislature anticipated the cost could be more than $100 million upon full implementation.

Who is against the scholarship?

The parents challenging the scholarship are Travis Beaver of Putnam County and Wendy Peters of Raleigh County.

They’re receiving significant legal support from a national organization called Public Funds, Public Schools. They argue that Hope Scholarship violates the state Constitution’s Article XII, Section 1 duty to provide for “for a thorough and efficient system of free schools.”

Beavers has two students in the public education system, including a sixth grade daughter diagnosed with special needs. Peters, a middle school teacher, has a fourth grader with special needs.

They contend that the Hope Scholarship would encourage students who are able to leave the public school system, diminishing public schools’ resources. Yet they contend not all students, like theirs, would have good options outside the public schools, or enough financial means — even with the Hope Scholarship — to pay for alternatives.

“Creating a second competing system that pays public money to parents in lieu of providing an education and subsidizes private education, with a separate Board and oversight, exceeds and frustrates the Legislature’s duties and powers set forth in the Constitution,” attorneys contend on their behalf. 

“Because public resources are scarce and public education is so important, if the State is going to tax and spend for education it ‘shall be for the support of the free schools.’”

Who supports the scholarship?

Parents who say their children would benefit from the scholarship filed to intervene and petitioned the Supreme Court to review the lower court ruling.

One, Katie Switzer of Morgantown, has a son who struggles in larger groups. Switzer wants an education plan that’s a blend of homeschool curricula and local charter school and educational co-op classes. “Switzer had been relying on her Hope Scholarship funds to afford the necessary materials and classes.”

The other, Jennifer Compton of Albright, has a son who has struggled in public school and who needs occupational therapy. She enrolled her son in private school, hoping he’ll receive more individual attention. When the Hope Scholarship was halted, she enrolled her son in a hybrid-homeschooling school and is deferring tuition payments until the Hope Scholarship matter is settled.

The parents who want to defend the scholarship are receiving support from another national organization, the Institute for Justice. 

“The State’s duty to provide thorough and efficient public schools has nothing to do with whether it can assist families who have opted out of public schools,” attorneys argue for the parents. 

“The circuit court was wrong to refashion the Legislature’s duty to provide a thorough and efficient system of free schools into a constitutional bar against funding any non-public educational initiatives that may affect public school enrollment.”

What’s the state’s position?

The State of West Virginia, through the Attorney General’s Office, is trying to uphold the scholarship.

The state’s official position is that the Constitution does not prohibit funding educational options in addition to public schools. Lawyers for the state also argue that the scholarship does not take money from the officially-designated School Fund because it, instead, creates a new appropriation that the state Department of Education is supposed to transfer to the separate Hope Scholarship Board to administer the program.

“Nothing about this initiative should have created constitutional concern. The Act did not purport to touch our State’s public schools. It did not draw a cent from the School Fund or take anything from appropriations reserved for public education. It did not modify the Board of Education’s traditional authority,” wrote lawyers for the Attorney General.

“It did introduce more flexibility, further empowering parents to select a nonpublic education should they choose.”

What does the state school board say?

The state school board and superintendent take a different view from the attorneys officially representing the state.

Superintendent David Roach and board President Paul Hardesty, in a separate filing from the state’s, say by its very nature the Hope Scholarship would diminish public education in West Virginia. They contend the program “threatens the fundamental rights of students across this State to a sufficiently funded public education.”

Providing an incentive to leave the public school system, they contend, logically results in less funding for school districts as net enrollment decreases.

“If a county’s net enrollment’ decreases, so does its budget for operations and maintenance. Any school district with students who leave public schools to receive funding under the voucher law will experience a budgetary impact,” their lawyers wrote.

The state education leaders also take issue with the structure of administering the Hope Scholarship, saying the separate Hope Scholarship Board is granted its own rulemaking authority and supervises where the public funds are to be spent.

“Thus, the voucher law unlawfully prevents the State BOE from exercising its supervisory and rulemaking authority to supervise the public funding of education in the State,” their lawyers wrote.

Who else has taken a position?

There are several “friend of the court” briefs expressing positions. One of the most notable is from Bishop Mark Brennan of the Wheeling-Charleston Diocese, addressing the mission and history of the private Catholic schools in the state.

“Bishop Brennan saw in the Hope Scholarship Program a fundamental recognition by the State of the truth — that it is parents who bear the first responsibility for the education of their children, not the State, and that the State has a natural interest in supporting families in that crucial endeavor,” that brief states.

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