Court majority: State can constitutionally fund public schools plus Hope Scholarship

The West Virginia Supreme Court outlined its reasoning that state financial support for students leaving public schools is constitutional, weeks after dissolving an injunction. 

Tim Armstead

The court released a majority opinion written by Justice Tim Armstead on Thursday afternoon. Justice Bill Wooten concurred, which means he agreed but with somewhat different reasoning. Chief Justice John Hutchison disagreed and issued a dissenting opinion. 

The Hope Scholarship, one of the nation’s broadest school voucher programs, was being challenged over whether it undercuts the state constitution’s guarantee of a “thorough and efficient” education system.

Armstead wrote for the majority, “We find that the West Virginia Constitution does not prohibit the Legislature from enacting the Hope Scholarship Act in addition to providing for a thorough and efficient system of free schools. The Constitution allows the Legislature to do both of these things.”

Joanna Tabit

Kanawha Circuit Judge Joanna Tabit earlier ordered an injunction to halt distribution of the Hope Scholarship for about 3,000 students in its first year.

Tabit asked how the state could possibly afford the program and noted that when students leave public schools, they are no longer counted toward the state’s school aid formula for counties. 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.

The Supreme Court majority entered an order in October to dissolve the injunction, saying justices would fill in their reasoning later. Today’s release of the opinion represents that step.

The full 49-page opinion sent the case back to Tabit’s court with directions to enter judgement in favor of the petitioners who filed in support of the Hope Scholarship.

Armstead wrote, “we find that the circuit court abused its discretion by permanently enjoining the State from implementing the Hope Scholarship Act.”

The majority opinion emphasized phrasing in the law that establishes the scholarship funding in addition to the amounts the state already allocates toward education. “Thus, per the plain language of the statute, the Hope Scholarship’s funding is ‘in addition to all other amounts required’ to fund public education,” Armstead wrote.

The Legislature passed and the governor then signed a bill establishing the Hope Scholarships in 2021. The program is set up to provide money for students leaving the public school system to use for a variety of education costs. West Virginia’s program also allows students old enough to enter the school system for the time to be eligible immediately.

Families can use the accounts for a range of expenses like homeschooling, private school tuition, online learning, after-school or summer-learning programs or educational therapies. West Virginia’s law is one of the most wide open in the country because eligibility in most other states with similar programs is more narrowly defined.

The scholarship amount varies each school year. For the 2022-23 year, that amount was to be about $4,300. So the total amount of public funding so far would be about $13 million.

Over time, that amount would increase. A fiscal note for the Legislature anticipated the cost could be more than $100 million upon full implementation.

People challenging the program say it naturally diminishes the resources of the public education system. Those who defend the program say the state can support a solid public education system while also providing the flexibility of more options.

More than 3,000 students had already been awarded the scholarship, which would have been used for education expenses this fall, when it was halted in the court system. Without the money, they had to make other arrangements.

After the Supreme Court’s earlier order, the board that oversees the Hope Scholarship began the process of gearing it up again. The Hope Scholarship board has a meeting set for 10 a.m. Friday to continue working through that process.

John Hutchison

Hutchison’s dissent concluded that the Hope Scholarship does not pass constitutional muster. Like Tabit, Hutchison pointed to the effects of departing students as a financial loss because of the state School Aid Formula.

“The majority responds that there is no cause for concern because the Legislature may alter the School Aid Formula at some point in the future to address the loss of funding due to the Hope Scholarship Program enticing students out of public schools,” Hutchison wrote.

“But the constitutional validity of the Hope Scholarship Program cannot depend on what the Legislature might do to amend another code provision in the future.”

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