The West Virginia Supreme Court of Appeals is now considering whether to dissolve a permanent injunction against the Hope Scholarship Act, which sets aside funding each year for some parents to send their children to private schools.
The act passed the Legislature last year and by May 3,000 students had been approved for the program for the 2022-23 school, with more than $4,200 set aside for each student.
However, in July Kanawha County Circuit Court Judge Joanna Tabit ruled the Hope Scholarship Act violated the state’s Constitution, which requires the state to provide “for a thorough and efficient system of free schools.”
Tabit agreed with the West Virginia Department of Education that the millions of dollars for the program drains money from public schools and incentivizes parents to take their children out of public schools.
After her ruling, West Virginia Attorney General Patrick Morrisey appealed the decision and asked the state Supreme Court to remand the case back to Kanawha County Circuit Court for dismissal.
On Tuesday, Morrisey’s office presented the state’s case to the Supreme Court of Appeals.
“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,” Morrisey said after his office presented its case. “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.”
According to Morrisey’s appeal, the circuit court incorrectly found that the Act interferes with the Legislature’s duty to provide a “thorough and efficient system of free schools” for West Virginia students. That court also “misread the Hope Scholarship Act to find that it takes money from the school fund, interferes with the State Board of Education’s role, and is a special law.”
Morrisey’s office said the Act “did not purport to touch our State’s public schools.” and it “did not draw a cent from the School Fund or take anything from appropriations reserved for public education.”
The Act provides money for students leaving the public schools system and the scholarship allows families to use the funding for a variety of expenses, including tuition and fees at participating private schools and other educational activities, Morrisey said, adding that it is not a voucher program.
Students can use scholarship funds for many educational ends beyond paying “tuition and fees at a participating school.”
“The state is providing a thorough and efficient system of free schools for West Virginia’s children, and has discretion to supplement that system through the Hope Scholarship Act,” according to the state’s reply brief filed in the case.
“Our kids deserve the best educational options—we will fight for our kids and the hard working families of our state to retain this law and uphold its constitutionality,” Morrisey said.
But State Board of Education President Miller Hall said in July Tabit’s decision was a “win” for students.
“When you start taking money from the public schools and giving it out, it makes a major difference in how you educate and anything with the facilities and things of that nature,” Hall said in a statement.
West Virginia Education Association Dale Lee also agreed with Tabit’s decision, but saying it has nothing to do with parents choosing to put their children in private schools.
“This is about public tax dollars paying for that choice, and our Constitution says we are to provide a free and thorough and efficient education system, not a private education system,” he said. “This is an incentive to take your child out of the public schools, which takes the dollars out of our public schools, which harms our schools … While I’m not a lawyer, I believe that it is clear what our founding fathers meant by that.”
— Contact Charles Boothe at firstname.lastname@example.org