In case you missed it, West Virginia’s new Hope Scholarship Program is under attack in the courts. Here’s what you need to know.
West Virginia created an education model for the nation in 2021 when it passed into law an education savings account (ESA) program open to 93 percent of K-12 students statewide. Parents may receive the average per-pupil state funding already set aside for their children’s educational expenses which may include private school tuition, tutoring, credentialing, therapies, transportation and more. The Hope Scholarship is the most expansive ESA program in the nation, designed to bring academic opportunity to every child in the state.
Who Is Suing WV’s Hope Scholarship, and Why?
Paul Hastings LLP attorneys from Los Angeles, New York City and Washington, D.C., and the Education Law Center in Newark, New Jersey, partnered with the Public Funds Public Schools (PFPS) national campaign against school choice (led by the Education Law Center, Southern Poverty Law Center (SPLC) and SPLC Action Fund of Montgomery, Alabama, and Tamerlin Godley, Esq. of Los Angeles) and Hendrickson & Long law firm of West Virginia to represent three public school families seeking to block other parents in West Virginia from accessing Hope Scholarships for their children.
On January 19, 2022, this group filed Beaver v. Moore in the Circuit Court of Kanawha County, West Virginia. Civil Action 22-P-24 Judge Bloom, Civil Action 22-P-25 Judge Webster, Civil Action 22-P-26 Judge Bailey.
They allege that the Hope Scholarship violates the West Virginia state constitution in five ways:
1. Violates Article XII, Sections I, 4 and 5 by using public funds to subsidize non-public schooling in a manner that exceeds and competes with the Legislature’s obligation to provide for a thorough and efficient system of free schools.
Plaintiffs argue that the Legislature can only provide for a system of free public schools. They furthermore believe that the Legislature is prohibited from establishing Hope Scholarships, because they believe the program is a separate system of private schooling and homeschooling, diverting public funds that could otherwise be used for public education, or incentivizing conduct that negatively affects attendance at, and funding of, public schools.
2. Violates Article XII, Sections I and 5 by reducing funding to public education without a compelling state interest or narrow tailoring.
Plaintiffs believe that Hope Scholarships will reduce funding for public schools and argue that the Legislature can only reduce funds available for public education if there is a compelling purpose. Furthermore, they believe that providing public funding for a child to access a variety of educational resources using the Hope Scholarship is not a compelling government interest. They see the only compelling education interest of the Legislature to be in providing public schools, “a system of free schools.”
3. Violates Article XII, Sections 4 and 5 by using public funds to pay for private education and homeschooling, which is not in support of free public schools.
Plaintiffs argue that West Virginia’s state constitution mandates that the “School Fund” be used only for public schools and ”no other purpose whatever.” They interpret this to mean that no public funds may be used for any education purpose other than public schools.
4. Violates Article XII, Section 2 by creating the “Hope Scholarship Board” to oversee and administer the Hope Scholarship, divesting oversight and administration of certain public funds appropriated to the West Virginia Department of Education to a separate and independent board.
Plaintiffs argue that the Hope Scholarship Board, which will administer the Hope Scholarship, restricts the Board of Education’s ability to exercise academic or financial oversight over the use of public funds being spent on education. Members of the Hope Scholarship Board include the State Treasurer, State Auditor, State Attorney General, State Superintendent of Schools, Chancellor of Higher Education, Director of the Herbert Henderson Office of Minority Affairs, and three parents who intend to apply for the Hope Scholarship for their children.
5. Violates Article VI, Section 39 because it is a “special law” that treats students receiving public funds for ESAs differently than students receiving public funds to attend public schools with respect to anti-discrimination protections.
Plaintiffs argue that there are no private schools near their homes in West Virginia that would accept their children due to their children’s LGBTQ+ status or that would have the ability to address and provide necessary services for their children’s special needs. In their complaint, plaintiff parents did not comment on the ability to use Hope Scholarship funding for educational resources other than tuition payments at a school, resources that may be useful for their children’s education.
What’s At Risk
Thousands of families in West Virginia have voiced their support for the Hope Scholarship. This ESA offers a lifeline for children who need a different place or method of education to succeed. It is not limited to providing tuition. It can also fund a wide variety of educational services. This will introduce educational innovation in a state that longs to see their children rise to the top of the nation in academic, civic and personal success.
Plaintiffs have failed to consider the inestimable hopefulness and enthusiasm of parents and children who are eager to make the most of educational opportunity that awaits them when the Hope Scholarship is implemented.
They have severely underestimated the power of parents, teachers and private neighborhood schools to work together and meet the needs of children in their communities.
And most of all, they are wrong in thinking that the state’s only education interest is the funding of a public school system. Sadly, they are willing to ignore the fact that the most compelling education interest of any state is to provide educational opportunity for children so they can, learn, be joyful and live successful adult lives. A child’s fundamental right to an education that Plaintiffs reference must mean something more than funding a system that may not serve every child’s needs.
What Will Happen Next
We believe the state will vigorously defend the Hope Scholarship. The Institute for Justice has also asked the court to allow them to intervene in the case on behalf of parents who support and want to access Hope Scholarships. The EdChoice Legal Defense & Education Center will stand shoulder to shoulder with them and others seeking to uphold the right of children in West Virginia to access whatever educational resources will help them achieve success and happiness.
The court will set a schedule for motions and briefing in the coming months. Look for updates on our Legal Updates with Leslie on the EdChoice Chats podcast, and on this blog.
The complete West Virginia state constitution may be accessed here: https://www.wvlegislature.gov/WVCODE/WV_CON.cfm
Relevant (abbreviated) language from state constitutional provisions cited in the case:
6-39. Local laws not to be passed in enumerated cases.
The Legislature shall provide, by general laws, for the foregoing and all other cases for which provision can be so made; and in no case shall a special act be passed, where a general law would be proper . . .
The Legislature shall provide, by general law, for a thorough and efficient system of free schools.
12-2. Supervision of free schools.
The general supervision of the free schools of the State shall be vested in the West Virginia board of education which shall perform such duties as may be prescribed by law.
12-4. Existing permanent and invested school fund.
The existing permanent and invested school fund, and all money accruing to this state . . . and such sums as may from time to time be appropriated by the Legislature for the purpose, shall be set apart as a separate fund to be called the “School Fund,” . . . and the interest thereof shall be annually applied to the support of free schools throughout the state, and to no other purpose whatever.
12-5. Support of free schools.
The Legislature shall provide for the support of free schools by appropriating thereto the interest of the invested “School Fund,” the net proceeds of all forfeitures and fines accruing to this state under the laws thereof and by general taxation of persons and property or otherwise.