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W.Va. education officials take legal stand against Hope Scholarship

CHARLESTON — The two leaders of the West Virginia Department of Education and state Board of Education have thrown down the gauntlet against the state’s new Hope Scholarship education savings account program.

In a statement released Thursday night, State Superintendent of School Clayton Burch and Miller Hall, president of the state Board of Education, announced that attorneys representing both agencies filed a response in support of a lawsuit filed by two parents in January against the Hope Scholarship.

In the filing, sent to Kanawha County Circuit Court Judge Joanna Tabit on June 15, Burch and Miller are asking the court to grant a preliminary injunction to block the Hope Scholarship program. The two accuse the program of diverting taxpayer dollars away from public schools while bypassing the authority of the Board of Education, which they believe violates the state Constitution.

“The Hope Scholarship Program incentivizes students to exit the public school system and drains needed public funds from the state’s public schools,” Burch and Miller said. “As a result, it violates the West Virginia Constitution as it prevents the West Virginia Board of Education from providing a thorough and efficient education for all children. It is the Board’s intent to assert that position in the Circuit Court of Kanawha County and to support the parents who have initiated legal action in this matter.”

Putnam County parent Travis Beaver, Upshur County parent Karen Kalar and Raleigh County teacher Wendy Peters filed suit against the department and the board, as well as State Treasurer Riley Moore, Senate President Craig Blair, House Speaker Roger Hanshaw and Gov. Jim Justice.

The parents are represented by New Jersey-based Education Law Center and Charleston attorney John Tinney Jr. They argue the Hope Scholarship violates provisions of the West Virginia Constitution requiring the state to provide a “thorough and efficient system of free schools.”

“The people of this State made a choice in 1863 when they enshrined public education as a fundamental right in West Virginia’s constitution,” Burch and Hall said. “Thereafter, when the people of this State ratified the provision in the State’s constitution that entrusts the supervision of the public schools to the West Virginia Board of Education, they gave the Board the independent responsibility to protect and defend that constitutional choice.”

Burch and Hall are represented by Charleston-based law firm Bailey and Wyant. Filing on their behalf, attorney Kelly Morgan said that the Hope Scholarship jeopardized the “thorough and efficient” requirement, harming public schools by defunding them.

“The (Hope Scholarship) threatens the fundamental rights of students across this State to a sufficiently funded public education,” Morgan wrote. “The State of West Virginia does not have a compelling governmental interest in using public funds to subsidize homeschooling, private schools, and alternative forms of education existing outside of the public school system.”

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.

At implementation, any student who is enrolled full time in a public school for either the entire previous year or for 45 calendar days is eligible to apply for the scholarship, though students would not be able to remain enrolled full time in public schools to continue receiving the scholarship.

The state treasurer is charged with managing the Hope Scholarship program, with the program beginning at the start of the 2022-2023 school year. The deadline to apply was May 15, though the law allows the Hope Scholarship Board to accept late applications at their discretion. During a meeting of the Hope Scholarship Board Tuesday, 190 late applications were accepted. The Department of Education abstained from the vote.

The Legislature passed House Bill 2013 creating the Hope Scholarship last year. The bill caps the Hope Scholarship at $4,600 per student and could cost about $24 million per year when implemented in 2022, if every eligible student applies. As of Tuesday, 3,146 Hope Scholarship applications have been awarded at a total cost of $14.5 million.

The bill also opens the Hope Scholarship program to eligible public, private and homeschool students by 2026, increasing the cost to as much as $102.9 million by Fiscal Year 2027.

Spokespeople for Senate President Blair, House Speaker Hanshaw, and State Treasurer Moore referred to the Attorney General’s Office for comment. A request for comment from Attorney General Patrick Morrisey was not returned. The Attorney General’s Office is representing the remaining state officials in the lawsuit. Addressing the controversy on his Friday virtual briefing at the State Capitol Building, Justice said he didn’t mind the difference of opinion with state education officials.

“They have the independence to make a choice,” Justice said. “We’re on different sides of the fence. The courts will decide that and everything. That’s not an issue that needs any more discussion than just that. We’ll just do what the courts decide.”

(Adams can be contacted at sadams@newsandsentinel.com)

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