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High court hears Hope Scholarship arguments

CHARLESTON — Justices of the West Virginia Supreme Court of Appeals heard arguments Tuesday to determine whether the Hope Scholarship educational savings/voucher program can resume or remain shuttered.

The court agreed in August to hear an expedited appeal by West Virginia Attorney General Patrick Morrisey of a lower court decision in July that granted a temporary and permanent injunction preventing further implementation of the program.

The Hope Scholarship gives parents the option to use a portion of their per-pupil expenditure from the state School Aid Formula for educational expenses, such as private-school tuition, home tutoring, learning aids and other acceptable expenses. Before the program was halted, more than 3,146 Hope Scholarship applications had been awarded since the May 15 deadline at a cost of about $14.5 million.

Only students who are enrolled full time in a public school for either the entire previous year or for 45 calendar days are eligible to apply for the scholarship, but the program opens up to all eligible public, private and homeschool students by 2026 and could cost as much as $102.9 million.

Lindsay See, solicitor general for the Attorney General’s Office, argued that the Hope Scholarship didn’t violate the state Constitutional provisions requiring the Legislature to provide a “thorough and efficient system of free schools” by allowing parents to use a portion of their state per-pupil expenditure for educational services outside of public education.

“A duty to fund option A, public schools, doesn’t mean the Legislature can’t do something to make it easier for parents to choose option B or C instead,” See said. “When the Constitution talks about a duty to fund public schools, that’s the floor, not the ceiling on what the Legislature’s able to do.”

Joshua House, an attorney with the libertarian Institute for Justice representing two Hope Scholarship parents, argued that the state Constitution doesn’t bar the Legislature from providing the Hope Scholarship and also funding public education.

“The Constitution does not ban West Virginia from helping people like my clients afford the educational options that their families need,” House said. “No one contends that the Legislature is failing to provide thorough and efficient schools as required by the Constitution. Their argument is only that the Hope Scholarship program might have some potential negative effects. Again, as the state explained, their argument simply doesn’t hold water.”

Putnam County parent Travis Beaver, Upshur County parent Karen Kalar and Raleigh County teacher Wendy Peters filed a lawsuit in January to block the Hope Scholarship. Tamerlin Godley, part of their legal team, argued that the Hope Scholarship was a clear violation of the state Constitution.

“(The Hope Scholarship) violates the Legislature’s plain duty for each child using a voucher,” Godley said. “It takes the money that the state would have appropriated to the system of free schools and pays it to the parents’ (educational savings account). It is not providing vouchers in addition to public education. It is providing it instead of.”

The West Virginia Board of Education and state Department of Education were originally defendants in the lawsuit but switched sides over the summer in opposition to the Hope Scholarship. Michael Taylor, an attorney representing both the state board and department, argued that by providing the voucher, it would in the near future defund public schools who determine their budgets based on enrollment numbers.

“The issue before the court is whether the Legislature may constitutionally incentivize public school students to attend private schooling through a scholarship which results in a reduction of funds to the public schools,” Taylor said. “The answer is clearly no.”

While Justices Tim Armstead and William Wooton listened to Tuesday’s arguments, only Chief Justice John Hutchison and Justices Beth Walker and C. Haley Bunn asked questions of the attorneys.

“Would you agree … that absent some future act by the Legislature, in two years, there will be a decrease of some type or some amount to the public schools in the state of West Virginia?” Hutchison asked.

“There’s no absolute constitutional right to existing funding levels,” See answered. “The constitutional right is to make sure that schools can do their duty. And the way that the Legislature has chosen to do that through the funding formula as a constitutional method. The (Hope Scholarship) doesn’t change any of that.”

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