West Virginia justices weigh arguments over scholarship for students leaving public schools


West Virginia’s Supreme Court justices are considering whether scholarships for students leaving public schools will erode the constitutionally-required education system — or whether the state can meet its obligation to support the public school system and then go farther by providing even more options for families.

Over a little less than an hour, justices today heard arguments on multiple sides of that issue. Kanawha Circuit Judge Joanna Tabit earlier halted the scholarships, concluding that the program creates “an incentive to leave the public school system, reducing its enrollment and funding.”

The question before the justices is how the Hope Scholarship interacts with the West Virginia constitutional mandate to provide “a thorough and efficient system of free schools.”

Justices interjected today to ask some questions, as they always do, but generally they let the arguments flow. The justices who asked the most questions were Beth Walker and Haley Bunn, focusing sometimes on precedent that could shape interpretation of the case and also asking more specifically about the workings of the Hope Scholarship law.

After the case was over, both supporters of the Hope Scholarship and those challenging it put out statements expressing confidence in the court system’s consideration.

Patrick Morrisey

“We have a very strong case and the argument is very clear: the decision of a Kanawha Circuit Court judge is flawed in many ways and only renders harm to the thousands of families set to receive funds from the Act,” stated Attorney General Patrick Morrisey, whose office was defending the program on behalf of the state.

“I strongly support the right of parents to choose the best education possible for their children and will fight to prove the Act provides constitutionally for that right.”

Tamerlin Godley

The lawyer for parents challenging the scholarship program, Tamerlin Godley of Public Funds Public Schools, expressed hope that the justices will conclude the program is unconstitutional.

“This Court clearly takes very seriously the requirements of the state constitution, particularly when it comes to the guarantee of a quality public education for every West Virginia child,” Godley stated. “The private school voucher law enacted in 2021 violates the West Virginia Constitution and threatens the rights of hundreds of thousands of West Virginia students.”

The Hope Scholarship would provide money for students leaving the public school system to use for a variety of education costs. West Virginia’s program also allows students old enough to enter the school system for the time to be eligible immediately.

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.

John Hutchison

People challenging the program say it naturally diminishes the resources of the public education system. Chief Justice John Hutchison honed in on that question toward the end of today’s hearing.

“Do you agree, counsel, that absent some future act by the Legislature, in two years there will be a decrease of some type, of some amount to the public schools in the state?” Hutchison asked Lindsay See, the solicitor general who was arguing the state’s case to maintain the scholarship program.

“We are not contesting that, that there will be some decrease in funds,” See began to respond.

Hutchison then rephrased: “The real question is, looking at the evidence in the record, does that defunding, whatever amount it is, rise to a constitutional level?”

Lindsay See

See replied, “It is the question, whether it’s enough to get below the constitutional floor, and not because again, all these variable factors — that wasn’t something for the circuit court to weigh in the abstract.”

See went on to say the funding formula that the state uses for the school system would still continue to operate.

“And even if the court disagrees with that, to show that there’s some loss of funding is only part of respondents’ burden. They have to show that the loss of funding is going to be enough that school districts cannot perform their constitutionally-mandated duties. There’s no absolute constitutional right to existing funding levels.

“The constitutional right is to make sure schools can do their duty. And the way that the Legislature has chosen to do that through the funding formula is a constitutional method. The act doesn’t change any of that.”

The Legislature passed and the governor then signed a bill establishing the Hope Scholarships in 2021. West Virginia’s law is one of the most wide open in the country because eligibility in most 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.

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

The hearing before the five members of the Supreme Court explored 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.

Also at odds in the case were attorneys defending the law on behalf of the state versus a separate set of lawyers for the state school board president and superintendent.

Michael Taylor

Attorney Michael Taylor presented arguments against the Hope Scholarship program on behalf of Superintendent David Roach and state school board President Paul Hardesty.

“The issue before the court is whether the Legislature may constitutionally incentivize public school students to attend private schooling through a scholarship which results in a reduction of funds to public schools. The answer is clearly no,” Taylor said.

He described the funding of public education as having a constitutionally-preferred status in the state, a top priority. Net enrollment is a significant factor in the funding of public education, he added, for costs including improvements to educational programs, operations and maintenance, hiring teachers and hiring maintenance staff.

“This is a classic example of robbing Peter to pay Paul,” Taylor said. “Public education is constitutionally mandated to be funded by the Legislature. Private education is not.

“By directly resulting in a reduced net enrollment, which is the Legislature’s system of funding schools — primarily by encouraging public education students to leave to go to private schools — you’re reducing enrollment.”

Haley Bunn

Bunn asked a question at that point, wanting to know about other state policies that could indirectly reduce enrollment. She wanted to know if that “opens up the door to challenging many, many laws that have an indirect effect on enrollment, on where the population of teachers go, and that sort of thing.”

Taylor disagreed that this case represents an indirect effect on public schools because of the eligibility requirements for the scholarship: “Hey, leave public school and go to private school. If that’s not a direct effect on the funding of public schools, I don’t know what would be.”


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