It’s not often a defendant in a lawsuit takes the plaintiff’s side.
But such is the case when a statement was released on behalf of the state superintendent and the state board of education that made clear they support the lawsuit against the new Hope Scholarship and take issue with the program itself.
Clayton Burch in his capacity as the state superintendent of schools and Miller Hall in his capacity as the president of the state board of education are both named as defendants in the lawsuit Beaver v. Moore.
The case — brought by three West Virginia public school parents, including Travis Beaver — is a lawsuit against Treasurer Riley Moore and a slew of other West Virginia government officials over the “Voucher law.” The plaintiffs contend the voucher program violates the state’s constitution — and the state superintendent and BOE agree.
First, a little background. The Legislature passed HB 2013 in 2021. Now codified as 18-31-1, the new law creates the Hope Scholarship. The Hope Scholarship is a program that allows families to apply for a voucher, in the form of an education savings account, that would allow a student to use the money a public school would receive for that child’s attendance to instead pay for tuition to a private in-person or online school.
This is not the same as the “public” charter schools, which are considered to be part of the public school system. The Hope Scholarship specifically applies to “any private school that provides education to elementary and/or secondary students and has notified the board of its intention to participate in the program and comply with the program’s requirements” (emphasis added).
Parents and educators are challenging the Hope Scholarship on constitutional grounds. As the lawsuit says: “the State’s founders made explicit in the Constitution that the State must — and may only — fund and support a system of public schools. Anything that exceeds or frustrates this mandate is unconstitutional.”
It’s true. The West Virginia Constitution says, “The Legislature shall provide, by general law, for a thorough and efficient system of free schools.” For more than 150 years, “free schools” has been understood to mean free public schools, not “heavily subsidized until almost free private or for-profit schools.” The Constitution also orders the state to create a “School Fund” and lays out how it will be funded and what those moneys can be used for, including — as the lawsuit highlights — the edict that “interest [of the School Fund] shall be annually applied to the support of free schools throughout the state, and to no other purpose whatever.” However, the voucher law forces the Department of Education to transfer public education funds to the scholarship program. Diverting taxpayer dollars to private schools definitely seems to violate the “to no other purpose” part.
When the state superintendent and board of education filed in support of the plaintiffs, they emphasized the lawsuit’s point that the voucher law violates the constitutional power granted to the state board of education. Specifically the part of the Constitution that says, “The general supervision of the free schools of the State shall be vested in the West Virginia board of education.” The Hope Scholarship has its own board that oversees the program and administers the funds, separate and with virtually no input from the board of education. (We’d like to add that the law creating public charter schools also established a separate board to oversee and authorize them, possibly in violation of this provision of the state’s constitution.)
It seems pretty clear that the Hope Scholarship is blatantly unconstitutional — and that’s without getting into the damage it will cause to real public schools. We hope the courts will agree (no pun intended).