W.Va. Supreme Court Will Hear Appeal On Hope Scholarship

This is a developing story and may be updated.

Updated on August 19, 2022 at 1:30 p.m.

The West Virginia Supreme Court of Appeals will now determine if state issued scholarships for students wishing to leave the public school system violate the state constitution.

In an order released Thursday afternoon, the high court took the case away from the new Intermediate Court of Appeals but rejected a request to stay a lower court decision so funds could be released before the school year began.

Only Justices Tim Armstead and Haley Bunn supported the stay.

The Supreme Court announced it will expedite the appeal and oral arguments are set for October 4th.

The West Virginia Legislature established the Hope Scholarships in 2021, providing money for students leaving the public school system to use for a variety of educational costs. West Virginia’s program allows students old enough to enter the school system for the first time to be eligible immediately.

In January, 2022, two West Virginia parents filed a lawsuit, claiming the so-called “voucher law” violates the state constitution. In early July, Kanawha County Circuit Court Judge Joanna Tabit halted the program, granting a temporary injunction. Explaining her ruling, she said the program undermines an already underfunded public school system. She said the legislature violated its constitutional obligation by passing a statute diverting millions of taxpayer dollars and incentivising people to leave the public school system.

About 3000 qualifying Hope Scholarship families had been promised about $4300 per student for this school year.

In a statement, Attorney General Patrick Morrisey said he is ready for the legal battle to show the Hope Scholarship program is legal and constitutional.

“I am disappointed that the court did not grant a stay so that the thousands of families set to receive funds from the Act can avail of the benefits and send their children to the schools they have chosen,” Morrisey said. “We are ready to argue in front of the Supreme Court and fight for the constitutionality of this Act. This is about protecting the fundamental freedom of parents to choose the best education for their children.”

In a statement, the plaintiff’s lead attorney Tamerlin Godley with Paul Hastings, LLP and director of Public Funds, Public Schools supported the Supreme Court’s decision to not stay the injunction while an appeal continues.

“Now the courts at every level—the trial court, the Intermediate Appellate Court and the Supreme Court—have resisted the State’s efforts to try to implement this unconstitutional law,” Godley said. “We are pleased that the Supreme Court has taken up the matter and look forward to presenting our case. We are confident that the Supreme Court will confirm what the trial court found: that HB 2013 violates the constitutional rights of West Virginia’s children.”

Attorney Joshua House with the national Institute for Justice represents parents who intended to use the Hope Scholarship Program. He said he is happy the Supreme Court is taking this case seriously but disappointed the stay was denied.

“There are parents who are counting on using the Hope Scholarship to fund their homeschooling plans and to fund their private school plans,” House said. “Now, those plans have been thrown into disarray.”

House said the argument that Hope Scholarships divert taxpayer money earmarked for public school is false. He said Hope funding comes from a separate allocated source.

“This program comes from a different appropriation,” House said. “What that means in everyday terms is that West Virginians can have both public school and other options for kids for whom public school doesn’t work.”

West Virginia Education Association President Dale Lee said he was pleased the stay was rejected. He said Tabit’s ruling was correct and noted that the state’s public school system offers choices.

“They can home school their children, private school their children, church school their children anyway they choose,” Lee said. “This is not about choice. This is about public dollars paying for that choice.”

Lee hopes the fact that justices Tim Armstead and Haley Bunn supported granting the stay doesn’t affect the final outcome.

“Supporting the stay and deciding on the merits of the case are two different things,” Lee said. “I’m hopeful that they will see the same constitutionality issues that Judge Tabit saw and will be successful in this.”