Opponents of school choice, after a string of recent defeats in state legislatures (see “School Choice Advances in the States,” features, Fall 2021) are turning to litigation, asking courts to block these new options for parents and students.
One of their first targets is West Virginia’s Hope Scholarship Program. Passed in 2021, this program would have allowed qualified students, which included 93 percent of West Virginia students, to use the average amount of per-pupil state funding, approximately $4,300, on qualifying education expenses, including private school tuition.
The ink was barely dry on the governor’s signature before Mountain State Justice, a state progressive public interest law firm, announced in September 2021 that it would sue. They followed through in January 2022 with a case in Kanawha County Circuit Court, Beaver v. Moore, alleging a host of state constitutional violations.
Their first claim was based on the state constitution’s education clause, which says that “The Legislature shall provide, by general law, for a thorough and efficient system of free schools.” Interestingly the complaint claimed that that clause says that the state can “only provide for a system of free public schools” (emphasis in original). The clause does not actually say “only ,” nor does it indicate that whatever “thorough and efficient” means it only applies to public schools. The clause does not, in fact, limit the state’s ability to support education in other ways.
They also claimed that the program “violates the Legislature’s first constitutional obligation to fund public schools” because it “would negatively impact funding for public schools” since students might leave and therefore districts would not receive their per-pupil funding from the state. However, once again, there is nothing in West Virginia’s Constitution actually saying that programs negatively impacting school funding would be unconstitutional. That claim is so broad that it could include anything that could “incentivize” actions that would reduce enrollment. One could, after all, claim that insufficient road maintenance was prompting people to leave the state which could reduce enrollment in public schools or that inadequate public safety made the state less attractive to parents which would then reduce spending on schools.
Mountain State also alleged that the program violated the state constitution’s requirement that the “school fund” can be used for “no purpose whatsoever” than funding public schools. But the program does not take funds from the school fund. The act created a different fund that is paid for out of the state’s general fund. Other claims, such as that the program “usurps” the state Board of Education’s constitutional authority, were just as dubious. The board’s authority only extends to public schools, not all schools, as the argument seemed to imply.
In March, Mountain State asked for a temporary injunction halting the program. On July 6, a state circuit court judge, Joanna Tabit, went even farther than that request and issued a permanent injunction, meaning that it is her final judgment and that it will not be reconsidered unless she is overturned by a higher court. She has yet to issue a written opinion but from the bench she claimed that it violated the “thorough and efficient” education clause and said, “In my view, the plaintiffs and the public school system will suffer irreparable harm if the scholarship program and the legislation establishing it are not enjoined from being implemented.” The state allocations for this coming year, however, were based on last year’s enrollments, so the public schools would be receiving the same amount of money regardless of whether students received Hope Scholarships. Only next year would school districts’ state distributions potentially decline if parents sought options outside of the public school system and the program were not struck down by the courts.
While Tabit seemed very concerned about protecting public schools from competition, she was remarkably unconcerned about what would happen to the more than 3,000 students who had been told that they would receive scholarships for the coming year. After the ruling, the state immediately announced that “students and educational service providers may not be able to access Hope Scholarship funds for the 2022-2023 school year, even if a student’s application for the Hope Scholarship Program has already been approved.”
For now these students can only hope that the state’s petition for a stay to a court of appeals will be approved. In addition to documenting the contorted reasoning of the plaintiffs, the appeal, filed on July 19, pointed to the harmful timing of the injunction, which left “thousands” of families in “limbo.” The state also expressed frustration with Tabit refusing to say when she “will ultimately issue its written orders, even though the program was set to start depositing funds for families next month.”
Whatever the ultimate outcome in West Virginia, other states that have created or expanded school choice programs should expect similar challenges based on state constitution education clauses which often include a requirement for “thorough and efficient” or “thorough and uniform” or “general and uniform” public school systems. A voucher program in Florida faced a similar challenge (see “Florida Grows a Lemon,” Summer 2006). Such approaches may become more common now that the U.S. Supreme Court has issued rulings making state Blaine amendments, which restrict funding to religious institutions, less useful for choice opponents to rely on. Historically, as adequacy lawsuits demanding greater funding show, state court judges have not been shy about finding all sorts of previously unknown content in these state education clauses. In short, dodgy constitutional arguments have not been a barrier to judicial meddling in the past, so one should not count on them being a deterrent moving forward. However, state courts do operate under greater political constraints than federal courts (most state judges are either initially elected or subject to retention elections if initially appointed), so getting the programs off the ground and creating a constituency supporting them could eventually help serve to protect them from judges otherwise inclined to impose their policy preferences under the guise of constitutional interpretation.
Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.