AG asks for Hope Scholarship to flow, pending appeal

West Virginia’s Attorney General wants a scholarship program that provides state funds for students leaving the public school system to be able to continue while a legal challenge proceeds through the court system.

The Attorney General filed a motion to stay a circuit court ruling that the new Hope Scholarship is unconstitutional. The motion was made to West Virginia’s new intermediate appeals court.

Lindsay See

“The Court should stay this order to help ensure that West Virginia’s students have the best available education options for their individual needs — this school year,” wrote Solicitor General Lindsay See in the filing by the Attorney General’s Office.

The Attorney General is trying to allow scholarship money to flow to students and their families for the coming school year. The office is asking the intermediate court for a stay while pursuing a broader appeal to the state Supreme Court.

Patrick Morrisey

“The lower court’s ruling undermining parents’ freedom to choose how they educate their children is legally wrong and deeply disappointing, and we are ready to appeal as soon as the lower court issues its written order confirming its ruling from nearly two weeks ago,” Attorney General Patrick Morrisey stated today.

“In the meantime, we are urging the appellate court to stay the decision so that thousands of West Virginia families can receive the money the Legislature intended for the upcoming school year — which starts in a matter of weeks.”

Joanna Tabit

Hearing a challenge to the Hope Scholarship in early July, Kanawha Circuit Judge Joanna Tabit declared it null and void. Tabit concluded the scholarship violates the state constitution by diverting funding away from the public education system.

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

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.”

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.

More than 3,000 students had been awarded the scholarship, which could be used for education expenses this fall.

The Attorney General’s motion to stay Tabit’s ruling contends the judge overreached by issuing a permanent injunction. The motion also argues that the plaintiffs can’t prove how they would be harmed by the scholarship going forward. But the Attorney General does argue that families that had been counting on the scholarship will be harmed.

“The public should not have to wait for final appellate vindication to benefit from the Legislature’s deliberate choice,” the Attorney General’s Office wrote. “West Virginia students are counting on Hope Scholarships now.”

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