CHARLESTON, W.Va. — A voucher program that would provide West Virginia parents state money to pull their children out of K-12 public schools is blatantly unconstitutional and would disproportionately impact poor children and those with disabilities, a lawyer representing parents who sued the state argued Tuesday in West Virginia’s Supreme Court.
The Hope Scholarship Program, which was passed by the GOP-controlled state legislature last year and would have been one of the most far-reaching school choice programs in the country, “negatively and intentionally” impacts West Virginia’s system of free schools, lawyer Tamerlin Godley told justices during oral arguments.
“It decreases enrollment, and thus funding,” said Godley, who is representing two parents of children who receive special education supports in West Virginia public schools. “It utilizes public funding for subsidizing more affluent families that have chosen private and homeschooling and it silos the poor and special needs children who cannot use the vouchers.”
Signed by Republican Gov. Jim Justice last year, the program was set to go into effect this school year but was blocked by Circuit Court Judge Joanna Tabit in July. In a lawsuit supported by the West Virginia Board of Education and Superintendent of Schools, three parents of special education students said the scholarship program takes money away from already underfunded public schools and is prohibitive because there aren’t local private schools that could meet their children’s needs. One family has since withdrawn from the case.
The state immediately appealed the ruling. It’s unclear when justices will make a decision on the program, although the court’s current term ends in November.
The law that created the Hope Scholarship Program allows families to apply for state funding to support private school tuition, homeschooling fees and a wide range of other expenses. More than 3,000 students had been approved to receive around $4,300 each during the program’s inaugural cycle, according to the West Virginia State Treasurer’s Office.
Families could not receive the money if their children were already homeschooled or attending private school. To qualify, students had to have been enrolled in a West Virginia public school last year or set to begin kindergarten this school year.
Supporters of the scholarship say the program would actually help low-income families that want an alternative to public education but couldn’t otherwise afford to make the change. The Hope Scholarship Program gives West Virginians “the same choice that wealthier families have always enjoyed—the right to choose the best education for their children,” Institute for Justice Attorney Joe Gay argued in January when parents first filed their lawsuit against the state.
The Institute for Justice, which has defended educational choice programs in courts across the U.S., is representing at least one parent who intervened in the case in support of the program.
Solicitor General Lindsay See argued Tuesday in court that state legislatures have discretion in making laws, unlike a state agency, which “can only do the things the Constitution or statute specifically says it can.”
“Public schools are critically important, but the Legislature was not out of bounds for concluding that West Virginia families should have access to other options, too, based on their children’s individual needs,” she said.
See said the program would result in a loss of funding for public schools — but not enough of a decrease that school districts will not be able to “perform their constitutionally mandated functions.”
“That’s for the simple reason that decreased revenue from one year to another is not enough on its own to prove that a company or state or a school district is going to run a deficit,” she said. “Certainly, some costs are going to go down as students leave a particular public school. That decrease may not be one to one, but it’s not zero to one.”