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No Holiday Break for News out of Capitol

It might have been a shorter week last week due to the Independence Day holiday, but there was no shortage of news.

The first big story to break last week was the halt of the Hope Scholarship education savings account program by Kanawha County Circuit Court Judge Joanna Tabit on Wednesday.

Calling the Hope Scholarship an education savings account is somewhat unfair. ESAs allow families to use a certain portion of tax dollars to pay for educational services. That ranges from study materials, tutoring, home schooling, tuition for private schools, etc.

There are not many ESA programs nationally, but the ones that do exist usually limit who can apply based on income levels or access to educational resources. They are aimed at parents with students who need additional help beyond what the public school system can provide but can’t afford those services.

West Virginia’s Hope Scholarship is more akin to a limited voucher program. It’s limited to parents of public school students who wish to use a portion of the state student aid formula that follows their student through the public school system, who then can use that funding for private educational services.

In court, opponents of the Hope Scholarship argued that it used public tax dollars to incentivize families to pull their students from public schools, starving these schools of funding and enrollment used to determine future funding. Judge Tabit determined the program violated the state constitutional provision requiring the Legislature to provide for a “thorough and efficient system of free schools.”

Supporters of the Hope Scholarship argued that the program doesn’t violate that constitutional provision and that the Legislature can walk and chew gum at the same time by funding public schools and the Hope. It also allows the school to keep a portion of the Hope student’s per-pupil expenditure unlike currently, when a student leaves the school system and the school loses all access to that money.

School choice has been a buzzword among state lawmakers the last couple of years. Our first brick-and-mortar public charter schools and statewide virtual charter schools open this school year. More than 3,000 applications for the Hope Scholarship had been approved prior to the injunction. The Legislature approved a bill earlier this year allowing for unlimited micro-schools and learning pods.

I’ve personally never been against school choice. I spent all my schooling years in public school except for my senior year, where I graduated from the Christian school that my church in St. Marys restarted. But it does seem like school choice has become more of a focus for some lawmakers and state public policy wonks than improving the educational outcomes of those who remain in the public school system. I’m not sure the answer to our educational issues is simply encouraging people to leave the public school system.

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That said, lawmakers might want to reconsider amending the state Constitution in the near future to make it clear that the state Board of Education is not a fourth branch of government. The state board and the Department of Education were defendants in the Hope Scholarship lawsuit, but they switched sides and filed briefs in support of the plaintiffs.

The state Constitution says that “the general supervision of the free schools of the State shall be vested in the West Virginia board of education.” But it also says that the state board “shall perform such duties as may be prescribed by law.” It’s the Legislature that makes the laws and the executive branch that enforces those laws as we talked about last week.

State Board of Education members are appointed by the governor and confirmed by the state Senate. Both the state board and the Department of Education are executive branch agencies. The state superintendent of schools is the only unelected member of the Board of Public Works.

The board and department have occasionally come out critically against bills the Legislature has considered. But in this case, they’re using taxpayer dollars to pay for private attorneys to file documents supporting the parents who filed suit against Hope, meaning they are using taxpayer dollars to oppose the executive and legislative branches in court.

I’d argue that if the Hope is a violation of the state Constitution, how is the board and department not running afoul of the constitution by not performing the duties prescribed to it by the law the Legislature passed and Gov. Jim Justice signed?

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Speaking of Gov. Justice, when he first announced his proposal for a 10% cut in personal income tax rates, I knew it sounded familiar. Because it was the exact same plan that the House of Delegates passed earlier this year in House Bill 4007, introduced by House Finance Committee Chairman Eric Householder, R-Berkeley.

HB 4007 passed the House 76-20 along party lines, but the state Senate never took it up. One of the reasons it was never taken up was concerns about running up against the federal American Rescue Plan Act’s provisions prohibiting using ARPA’s COVID-19 funds as a way to directly or indirectly lower taxes. Nevermind that the provision has been stayed by two federal courts, so it is unenforceable.

When I asked Justice and Department of Revenue Secretary Dave Hardy about how their plan was different than Householder’s HB 4007, their answers didn’t pass the smell test. I don’t think they were expecting the question, though they should have. No one reports on the budget with the level of detail I do.

House members I talked to were happy with Justice’s personal income tax proposal, even if it was a re-branded version of HB 4007. But listening to Senate President Craig Blair, R-Berkeley, on WV MetroNews Talkline last week, it sounds like the Senate Republicans are still skeptical.

It’s not that they don’t support cutting the personal income tax; they’re just more focused on trying to pass the constitutional amendment on the November ballot that will allow the Legislature to make changes to certain property taxes. Blair has proposed using available tax surplus dollars and giving residents a rebate on their vehicle property taxes as a taste of what could happen if the constitutional amendment passes.

We’ll see what happens when lawmakers meet in special session at the end of the month.

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