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West Virginia’s Board of Education president and the state schools superintendent are asking a judge to block the state’s upcoming nonpublic school vouchers program.

It’s an exceedingly rare public break between the state’s top public education officials and dominant Republican legislative leaders, who passed the nation’s broadest school choice law last year.

In January, when Mountain State public school parents sued Republican Gov. Jim Justice, Republican state Treasurer Riley Moore and the leaders of the Republican legislative supermajorities, they also named state school board President Miller Hall and Superintendent Clayton Burch as defendants. The case was filed in Kanawha Circuit Court.

But after the parents filed a motion asking a judge to stop the vouchers program, called the Hope Scholarship, from taking effect this fall, Hall and Burch filed a motion supporting these parents — and supporting preserving public education funding — instead of supporting the other state leaders.

“State Superintendent Burch and President Hall adamantly oppose recently enacted legislation establishing the Hope Scholarship Program and request this Court to grant Plaintiff’s Motion for Preliminary Injunction enjoining the Hope Scholarship Program, and the legislation surrounding it, from being implemented in the State of West Virginia,” Burch and Hall’s attorneys wrote.

The other defendants didn’t comment Thursday afternoon. Heather Hutchens, general counsel for the state Department of Education under Burch and Hall, wrote in an email that Hall and Burch’s position “is based on a legal analysis of the statutes authorizing the Hope Scholarship and the West Virginia Constitution. Any characterization of this legal analysis as turning against the Governor or other state leaders is inaccurate.”

Burch and Hall’s lawyers in the case, Kelly C. Morgan and Michael W. Taylor of Bailey & Wyant PLLC, wrote in the filing that “the Hope Scholarship Program, also referred to as the voucher law, will only serve to divert funding away from public schools in this State, which will directly harm West Virginia’s public-school students.”

They noted that “a significant majority of the [public education] funding formula is attributable directly or indirectly to enrollment figures from the prior year.” So, as enrollment in public schools falls, so does state funding for those schools.

Currently, the program is open to either rising kindergartners whose parents divert them from public schools or older students already in public schools whose families choose to withdraw them.

For each participating child, families will receive $4,300 in the upcoming school year to spend on a nearly unlimited variety of public school alternatives, including religious and secular private schools and homeschooling. That’s if the program isn’t blocked by this lawsuit.

Burch and Hall’s lawyers also wrote, “the voucher law has only minimal academic testing requirements to ensure that a private or homeschooled student is progressing and meeting educational standards.”

“The amount of public school funding necessary to provide students with a full educational experience does not decrease proportionately with each student who exits the public school system to receive funding under the voucher law,” their lawyers wrote.

“There are 297 Kanawha County students who have applied for funding under the voucher law,” the lawyers wrote as an example. “These students are spread out across the county, making it extremely unlikely Kanawha County administrators could close or consolidate schools, eliminate bus routes, or decrease their bus fleet in order to save costs proportionate to the lost revenue for those 297 students.

“Moreover, other fixed cost for staffing (each school must have a principal, cooks, custodian, teachers, etc.), building maintenance, grounds, internet, water, telephone, security, supplies, software, equipment and other services may increase on a per-pupil basis, making it even more expensive to educate the students remaining in the district.”

Because of this and other legal arguments surrounding the special place of public education, public funding and the state board’s power in the constitution, the lawyers argue that the program should be blocked.

Burch and Hall didn’t publicly speak out against the vouchers legislation as it was moving toward passage in 2021.

The only legislative action the state school board publicly opposed in the past two annual legislative sessions was the currently proposed constitutional amendment that would give the Legislature the final say over all the state board’s policies, including curricula. This year, the board waited until after the Legislature finished approving putting the proposed constitutional amendment on the upcoming November ballot before weighing in against it.

Now, Hall and Burch are publicly arguing in court against a program the Legislature passed and the governor, who appointed most of the board members, signed into law. The board is unelected. The governor appoints its members to nine-year terms and, if the Senate confirms those appointments, which it has for each, the members cannot be removed by anyone over policy or political disagreements until their terms are up.

“The voucher law usurps the State Board of Education’s constitutional exercise of rule-making and supervisory authority over public funding for education occurring in the State,” Burch and Hall’s filing says. “The voucher law unlawfully creates a separate board which oversees and supervises the public’s funds that are to be used for educational purposes.”

The state board is the supreme public education authority in West Virginia. It even has the ability to temporarily take over county school systems that, in the state board’s view, aren’t fulfilling their educational duties to children.

But the Legislature placed the Hope Scholarship program under another unelected panel: the Hope Scholarship Board, which Moore, the treasurer, chairs, and which also includes other leading Republicans, including state Attorney General Patrick Morrisey.

“The Attorney General will ensure that we mount a vigorous defense of this important law. That is the job of our office,” said John Mangalonzo, press secretary for the Attorney General’s Office.

Ryan Quinn covers education. He can be reached at 304-348-1254 or ryan.quinn@hdmediallc.com. Follow @RyanEQuinn on Twitter.

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