Judge says scholarship offering public money for private education is unconstitutional

Kanawha Circuit Judge Joanna Tabit has concluded that a scholarship program that provides state funds for students leaving the public school system runs afoul of the state Constitution.

That conclusion at the end of a hearing that lasted a little more than an hour led Tabit to determine the Hope Scholarship program is null and void.

Joanna Tabit

“I’m granting preliminary and permanent injunctive relief, enjoining the state from implementing that statute,” Tabit said at the end of the hearing.

There’s a strong likelihood the issue will next go to the state Supreme Court. “We will be appealing,” said Conor Beck, communications project manager for the Institute for Justice, which is supporting parents who want to use the scholarship.

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

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.

The plaintiffs, parents of students in the public school system, argued 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 in the complaint kicking off the legal challenge. “This separate program is unconstitutional.”

The plaintiffs went 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.”

Lawyers for the state Attorney General’s Office defended the state’s position in establishing the scholarship.

Patrick Morrisey

Following the ruling, Attorney General Patrick Morrisey expressed disappointment and said his office would work toward an appeal.

“I am disappointed with this ruling. We will appeal because this is an important law that provides parents greater freedom to choose how they educate their children,” said Morrisey, a Republican. “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.”

In a twist, the state Superintendent of Schools and Department of Education, who had been named as defendants, took a position agreeing with the plaintiffs that the Hope Scholarship improperly diverts resources from the public school system.

Riley Moore

State Treasurer Riley Moore, whose office oversees the Hope Scholarship, also described disappointment and said he would support an appeal.

“I am deeply disappointed that a judge has decided to halt this Program which would help so many families in West Virginia,” Moore stated. “More than 3,100 West Virginia students were relying on having this funding in the fall, and now – at the last minute – they may not be able to get the educational services they want and need.

Tabit heard from the lawyers on all sides before announcing her conclusions.

“In my view, the Hope Scholarship program provides a financial incentive to students enrolled in public schools to lead the public education system further negatively affecting the public school resources,” the judge said at the hearing’s end.

She continued, “The Hope Scholarship Program in my view undermines the free education system by requiring the Department of Education to take funds appropriated by the Legislature and transferring them to the Hope Scholarship Fund, which is then tasked for dispersing funds for private education.

“And in my view, the Legislature has violated its constitutional level obligations regarding public education and funding by enacting House Bill 2013 for the Hope scholarship fund.”

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.

A fiscal note produced for lawmakers when the bill first passed estimated that the full cost upon implementation could be as much as $100 million.

Lawyers for the state contended that money comes from the state’s General Fund, not directly from money that had already been allocated toward education. But Tabit noted that when students leave public schools, they are no longer counted toward the state’s school aid formula for counties.

And she said, based on a lifetime of living in West Virginia, that it’s not clear the state can afford putting up to $100 million toward education outside the public school system.

“Where are we getting this hundred million dollars?” she asked lawyers arguing for the scholarship. “Where is West Virginia getting all the money to fund this scholarship program?”

Fred Albert

Fred Albert, president of American-Federation of Teachers-West Virginia, expressed support for the judge’s decision, which “aligns with our organization’s belief that public funds should be used for the benefit of public schools and the students they serve, in accordance with the WV Constitution.”

Stephen Baldwin

Senate Minority Leader Stephen Baldwin, D-Greenbrier, agreed that the Hope Scholarship was set up in an unconstitutional manner.

“What really happened is the supermajority went too far,” Baldwin said of legislative Republicans during an appearance on MetroNews’ “Talkline.”

“If we were talking about a program that was going to help students that are not being helped by the public school system — and it’s targeted to those students — that’s one thing. This particular law, if memory serves me correctly, it is the most wide open in the United States. That’s the argument we made at the time: It went too far.”

Delegate Larry Pack, R-Kanawha, said debate over the scholarship isn’t over, citing either a court challenge or legislative changes to the policy.

“We’ll look at the ruling. I’m sure the ruling will be appealed, and from a legislative standpoint if there’s some cleanup work or some adjustments that we need to make to conform with the intermediate court or Supreme Court makes their decision, I’m sure we’ll do that promptly,” Pack said.

Pack said he stands by the program.

“That’s one of the proudest votes I’ve taken, and I’ve heard so many parents excited about the opportunity to use their tax dollars to get the best education they can for their children,” he said.

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