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West Virginia Supreme Court To Hear Hope Scholarship Case Oct. 4

CHARLESTON — The West Virginia Supreme Court of Appeals is expediting a lawsuit challenging the Hope Scholarship program with oral arguments scheduled in October.

In an order issued Thursday evening, the state Supreme Court scheduled briefs from the plaintiffs and defendants throughout September, with oral arguments scheduled for Tuesday, Oct. 4. Also, three out of five justices declined to issue a stay of the lower court ruling blocking the Hope Scholarship from being implemented.

The order comes after the new Intermediate Court of Appeals denied a motion Aug. 2 to stay a ruling by Kanawha County Circuit Court Judge Joanna Tabit last month that granted a temporary and permanent injunction preventing further implementation of the Hope Scholarship program, calling the law “null and void.”

“The Supreme Court of Appeals of West Virginia may, on its own accord, obtain jurisdiction over any civil case filed in the Intermediate Court of Appeals of West Virginia,” the order stated.

The ICA denied the stay, with Chief Judge Dan Greear recusing himself, with 11th Judicial Circuit Court Judge Jennifer Dent taking his place and denying the stay along with ICA Judge Thomas Scarr. ICA Judge Charles Lorensen was the lone supporter of issuing a stay.

Attorney General Patrick Morrisey filed motions to appeal Tabit’s injunction of the Hope Scholarship with the ICA along with the motion to stay Tabit’s decision pending appeal. After the stay was denied, the Attorney General’s Office appealed to the Supreme Court to grant a stay and throw out the Hope Scholarship injunction. But according to the order, the Supreme Court decided to hear and expedite the appeal separate from Morrisey’s motions.

“The appeal is expedited for briefing and consideration. Therefore, both motions for expedited relief are refused as moot,” the order stated.

In her July ruling, Tabit said the Hope Scholarship violates the state Constitutional provision that requires the state to provide a system of free schools regulated by the state Board of Education by taking funding meant for public schools and allowing it to be used for private schools or homeschooling.

“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 in a statement Thursday night. “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.”

The Hope Scholarship gives parents the option to use a portion, $4,600, 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.

The State Treasurer’s Office is charged with managing the Hope Scholarship program, with the program beginning at the start of the 2022-23 school year. More than 3,146 Hope Scholarship applications have been awarded since the May 15 deadline at a cost of about $14.5 million.

Only students who are enrolled full time in a public school for either the entire previous year or for 45 calendar days are eligible to apply for the scholarship, but the program opens up to all eligible public, private and homeschool students by 2026 and could cost as much as $102.9 million.

Putnam County parent Travis Beaver, Upshur County parent Karen Kalar and Raleigh County teacher Wendy Peters filed suit last January against state Treasurer Riley Moore, former State Superintendent of Schools Clayton Burch, former state Board of Education President Miller Hall, Senate President Craig Blair, House Speaker Roger Hanshaw and Gov. Jim Justice.

“The courts at every level – including now the West Virginia Supreme Court – agree that the injunction must remain in place pending appeal and the state cannot implement the voucher program while its constitutionality is in question,” said Tamerlin Godley, partner at Paul Hastings LLP and lead attorney for Beaver, Kalar, and Peters. “We are pleased to have the opportunity to present our clients’ case to the Supreme Court and urge it to affirm the trial court’s ruling that the voucher law violates the constitutional rights of West Virginia’s children and must be struck down.”

In June, Hall and Burch filed a response to the lawsuit in support of the parents, breaking with the governor, Legislature, and state treasurer. Since then, Hall was succeeded by Paul Hardesty as state board president and Burch stepped down to become superintendent of the Schools for the Deaf and the Blind.

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