CHARLESTON — As West Virginia officials prepare to implement the nation’s most expansive education savings account program and the new state charter school board has its first meeting, the state may have to defend both programs in court.
According to a letter sent by certified mail Aug. 11 to state legislative leaders, Gov. Jim Justice, Attorney General Patrick Morrisey and State Treasurer Riley Moore, Mountain State Justice gave the state a 30-day notice of its intent to file a lawsuit to block implementation of House Bill 2012 and House Bill 2013.
HB 2012 made changes to the state’s public charter school pilot program created in 2019 by House Bill 206. HB 2013 created the Hope Scholarship education savings account program.
By law, anyone filing suit against the state must give a 30-day notice. In the Aug. 11 letter, Mountain State Justice Litigator Director Bren Pomponio said that HB 2012 and 2013 violate the West Virginia Constitution.
Pomponio said HB 2012 violates Article 12 section 10 of the state Constitution, which prohibits the creation of an independent school district within a county school district without the consent of the county or counties. Pomponio said HB 2013 violates Article 6 section 39, calling HB 2013 a special law prohibited by the Constitution because it doesn’t include antidiscrimination protections even though those protections are already by provided by federal law.
Pomponio went on the say both HB 2012 and HB 2013 violate Article 12 section 1 of the Constitution, which states “The Legislature shall provide, by general law, for a thorough and efficient system of free schools,” by not reviewing the financial effect charter schools and the Hope Scholarship would have on schools if students choose to attend charters or participate in the Hope Scholarship.
“As a result of these constitutional violations, our clients request all relief available to them, including declarations that provision of HB 2012 and HB 2013 are unconstitutional, injunctive relief obligating defendants to scrutinize the school funding formula by commissioning an adequacy cost study, and any award of fees and costs available for bringing the action.” Pomponio wrote.
House Speaker Roger Hanshaw and state Senate President Craig Blair declined to comment, as did Justice. A request for additional clarification from Pomponio was also not returned.
“Our office has received the letter. We are reviewing the letter with every intent to defend the validity of both laws as necessary,” said Curtis Johnson, press secretary for the Attorney General’s office, in response to a request for comment Wednesday.
HB 2012 expanded the maximum number of public charter schools in a three-year period from three to 10 schools, allows for two statewide virtual charter schools with an enrollment cap of 5 percent of statewide headcount enrollment each school year, and allows for county virtual charter schools with an enrollment cap of 10 percent of total county public school enrollment.
HB 2012 also creates the Professional Charter School Board as one of four authorizers for charter school applications along with a county board of education, two county boards of education, and the state Board of Education under certain circumstances.
The Professional Charter School Board held its first meeting Wednesday on the grounds of the State Capitol Building. The board approved bylaws for the organization and voted for a chairperson.
Adam Kissel, a former deputy assistant secretary for higher education programs at the U.S. Department of Education and senior fellow at the libertarian Cardinal Institute for West Virginia Policy, was selected as chair. The board set the next meeting for Friday, Aug. 27, at 9 a.m. Part of the next agenda could include seeking counsel to defend HB 2012.
“The firm’s clients should be ashamed of trying to take education choices away from families in need,” Kissel said in response to the lawsuit threat. “None of the firm’s claims makes sense. It is too early to comment without an identified client.”
Senate Education Committee Chairwoman Patricia Rucker, R-Jefferson, is a non-voting member of the Professional Charter School Board. An outspoken supporter of charter schools and education savings accounts, Rucker questioned the motives of Mountain State Justice for their lawsuit threat.
“Anyone who is trying to slow down or take away the opportunities for our kids to get the education they need is definitely not doing this with the best interests of our kids in mind,” Rucker said Wednesday by phone.
HB 2013 would give parents the option to use a portion 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 bill caps the Hope Scholarship at $4,600 per student and could cost about $24 million per year when implemented in 2022 if every eligible student applies.
At implementation, any student who is enrolled full time in a public school for either the entire previous year or for 45 calendar days is eligible to apply for the scholarship. The bill also opens up the Hope Scholarship program to eligible public, private and homeschool students by 2026, increasing the cost to as much as $102.9 million by fiscal year 2027.
The State Treasurer’s Office is setting up the Hope Scholarship program, with the goal of opening up applications in March 2022 for the 2022-2023 school year. Moore was an early supporter of HB 2013. In a statement Wednesday, Moore said he was disappointed in any delay that could occur with the Hope Scholarship program.
“From the moment the Hope Scholarship Act became law, my office began hearing from families, educators and constituents eager to participate in the program,” Moore said. “It’s distressing that a lawsuit coordinated by Mountain State Justice could potentially delay implementation of a program that is in high demand and possibly prevent students across West Virginia from being able to access educational options that best fit their needs.”
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