Case challenging public funding for private education goes to court

A West Virginia judge will decide whether to halt a state-funded scholarship for students leaving the public school system or whether to let it roll.

Kanawha Circuit Judge Joanna Tabit will preside over a 9 a.m. Wednesday injunction hearing focused on the Hope Scholarship, which was established in 2021.

More than 3,000 students have been awarded the scholarship, which could be used for education expenses this fall. But first the program is being challenged on grounds that it violates the state constitution by diverting funding away from 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.

Allowable expenses may be for individual classes or extracurricular activities; tuition and fees at participating schools; tutoring (except not by a member of the student’s family); fees for national standardized tests; fees for after-school or summer programs; educational services and therapies and more.

The scholarship amount varies each school year. For the 2022-23 year, it will be $4,298.60.

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

Who is suing and why?

The plaintiffs are Putnam County parent Travis Beaver and Raleigh County teacher Wendy Peters, who contend the diversion of money out of the public education system will weaken it, particularly as the program grows.

They’re receiving significant legal support from a national organization called Public Funds, Public Schools. 

The plaintiffs 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.” They contend that means the Legislature can’t “exceed this mandate by publicly funding private education outside the system of free schools.”

“A publicly funded system of private education separate from public education is exactly what the Legislature is attempting to establish here— with a separate Board, no academic requirements, and fewer antidiscrimination requirement,” they wrote. “This separate program is unconstitutional.”

The plaintiffs go on to contend that the scholarship provides “a monetary incentive for students to leave the public school system, depleting public school budgets that are significantly based on enrollment.”

Are there other parents in the case? 

Parents who say their children would benefit from the scholarship filed to intervene, so they are in the case too. They say they would depend on the scholarship to help pay for schooling that best helps their children.

“They wish to defend the very Program they will depend on to afford the educational options that best fit their families,” according to their filing.

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

One of the parents is Morgantown resident Katie Switzer, mother of four young children. Two would be eligible for the scholarship.

Her five-year-old has thrived at a Montessori pre-school, and Switzer believes the boy would benefit from the focus and student-directed learning that style of education offers. And Switzer believes her four-year-old girl would benefit from more individualized attention and accommodation for a speech disorder than a public school might be able to provide.

The other parent is Jennifer Compton, an Albright resident with two children. One, a four-year-old, would be eligible for the scholarship next year. Compton believes public school would not be a good fit.

That’s because the four-year-old has been dealing with sensory sensitivity, which has resulted in a feeding disorder. The boy received occupational therapy through the state’s early childhood intervention program. But once he aged out, the family described struggling with continuing to pay for the program while also paying for private schooling.

The sensory sensitivity also means that noisy, large classrooms hinder his learning, his mother indicated in the court filing. The family wants to use the scholarship to send the boy to one of three nearby private schools.

“Without the Hope Scholarship Program, Compton’s family would not be able to afford both non-public school and continued occupational therapy for J.C.,” lawyers wrote in the parents’ motion to intervene.

What does the state school board say?

The state’s top public schools officials came out against the Hope Scholarship in a public statement and corresponding court filing late last month.

Superintendent Clayton Burch and school board President Miller Hall are named as defendants in the lawsuit, but they came out in support of the plaintiffs, saying the officials “adamantly oppose recently-enacted legislation establishing the Hope Scholarship program.”

“The Hope Scholarship Program incentivizes students to exit the public school system and drains needed public funds from the state’s public schools,” the board officials said in a statement.

“As a result, it violates the West Virginia Constitution as it prevents the West Virginia Board of Education from providing a thorough and efficient education for all children. It is the Board’s intent to assert that position in the Circuit Court of Kanawha County and to support the parents who have initiated legal action in this matter.”

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