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Supreme Court takes over Hope Scholarship appeal, promises hearing soon, says no to stay

West Virginia’s Supreme Court has taken over consideration of whether a scholarship for students leaving the public school system violates the state constitution.

A majority of justices rejected a motion to stay a lower court’s decision to halt the Hope Scholarship, but the Supreme Court did agree to consider the issue swiftly. Justices set oral arguments for Oct. 4.

The issue had been the first big case before West Virginia’s new intermediate court of appeals. Now the Supreme Court will hear the appeal instead.

Those decisions were expressed in an order released this afternoon by the Supreme Court.

Lawyers representing the families suing to keep the scholarship from going into effect praised the Supreme Court’s order, saying it now means courts at all levels have agreed that the scholarship should not be implemented while its constitutionality is in question.

Supporters of the Hope Scholarship had asked for the money to flow, pending appeal and expressed disappointment over the Supreme Court’s order today because it means that money still won’t go to families at the start of this school year. More than 3,000 students had been awarded the scholarship, which could have been used for education expenses this fall.

Judges on the intermediate court earlier this month rejected the request for stay, so the scholarship dollars have remained on hold. Today’s order released by the Supreme Court indicated two justices, Tim Armstead and Haley Bunn, supported the stay — but a majority of justices ruled otherwise.

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.

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.

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.”

An attorney for the plaintiffs today praised the Supreme Court’s decision to keep the injunction in place while the full appeal is being considered.

“We are pleased to have the opportunity to present our clients’ case to the Supreme Court and urge it to affirm the trial court’s ruling that the voucher law violates the constitutional rights of West Virginia’s children and must be struck down,” stated Tamerlin Godley, partner at Paul Hastings LLP and lead attorney for the plaintiffs in Beaver v. Moore, the case challenging the Hope Scholarship.

On the other side, Andrew Clark, the executive director of a foundation called “yes. every kid.” expressed disappointment over the Supreme Court’s decision to keep the scholarship dollars halted for now.

“We are devastated by today’s ruling. More than 3,000 West Virginia students made decisions expecting to be able to take advantage of the Hope Scholarship program and had the rug pulled out from under them, just weeks before the start of school,” Clark said.

“We had hoped the Supreme Court of Appeals would rectify that wrong by staying the lower court’s injunction while the appeals process played out. Instead, this ruling further blocks students from accessing educational opportunities that work best for them.”

But Clark said his organization is pleased by the timetable set by the Supreme Court, saying “we remain optimistic that the program will ultimately be upheld by the high court and are encouraged that the Court recognized the importance of taking the case immediately so that it can bring this matter to a final resolution before the end of the fall semester.”





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