State of West Virginia, Katie Switzer, and Jennifer Compton v. Travis Beaver, Wendy Peters, David L. Roach, State Superintendent of Schools, and L. Paul Hardesty, President of the West Virginia Board of Education ( 2022 )

No. 22-616 – State of West Virginia, Katie Switzer and Jennifer Compton v. Travis Beaver,
Wendy Peters, David L. Roach and L. Paul Hardesty
FILED
November 18, 2022
WOOTON, Justice, concurring: EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
I concur in the Court’s conclusion that the Hope Scholarship Act, W. Va.
Code §§ 18-31-1 to -13, is not facially unconstitutional. Whatever my personal views as to
the wisdom of this legislation – and indeed, I share many of the concerns discussed in the
circuit court’s opinion – it is well established that “[t]his Court does not sit as a super-
legislature, commissioned to pass upon the political, social, economic or scientific merits
of statutes pertaining to proper subjects of legislation.” Syl. Pt. 2, in part, Huffman v. Goals
Coal Co., 223 W. Va. 724, 679 S.E.2d 323 (2009). In that regard,
“the legislators who enacted the [Hope Scholarship Act] were
elected by the people and are answerable to them; ‘[t]he
Constitution presumes that, absent some reason to infer
antipathy, even improvident decisions will eventually be
rectified by the democratic process.’ Cooper,1 229 W. Va. at
615, 730 S.E.2d at 398, quoting Vance v. Bradley, 440 U.S. 93,
97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).”
Morrisey v. W. Va. AFL-CIO, 243 W. Va. 86, 127, 842 S.E.2d 455, 496 (2020) (Workman,
J., concurring, in part, and dissenting, in part); see also MacDonald v. City Hosp., Inc., 227
1
State ex rel. Cooper v. Tennant, 229 W. Va. 585, 730 S.E.2d 368 (2012).
1
W.Va. 707, 722, 715 S.E.2d 405, 420 (2011) (“‘judicial challenge “is not a license for [this
Court] to judge the wisdom, fairness, or logic of legislative choices.’”) (citation omitted).
I write separately to note my concern that the ambiguous language of West
Virginia Code section 18-31-8(f) could raise a constitutional issue separate and apart from
whether the statute “requires a student to trade away their public education for a ‘sum of
money.’” 2 The statute establishes a mechanism by which Hope Scholarship students may
take classes or participate in extracurricular activities at a public school, as well as a
mechanism for reimbursement to a school district in which Hope Scholarship students have
done so. 3 The statute provides that
[t]he [Hope Scholarship] board, in consultation with the
Department of Education, may adopt rules and policies for
Hope Scholarship students who want to continue to receive
services provided by a public school or district, including
individual classes and extracurricular programs, in
combination with an individualized instructional program. The
[Hope Scholarship] board, in consultation with the Department
of Education, shall ensure that any public school or school
district providing such services receives the appropriate pro
rata share of a student's Hope Scholarship funds based on the
percentage of total instruction provided to the student by the
public school or school district. County boards shall charge
tuition to Hope Scholarship students who enroll for services in
I agree with the majority that this argument fails because the Hope Scholarship
2
program is entirely voluntary; a Hope student may re-enroll in public school at any time.
3
In this regard, the Act specifies that a Hope Scholarship student may use his or her
education-savings account for specific purposes, including “[o]ngoing services provided
by a public school district pursuant to § 18-31-8(f) of this code, including without
limitation, individual classes and extracurricular activities and programs. Id. § 18-31-
7(a)(1).
2
a public school within the county. Hope Scholarship students
who enroll for services part-time in public school shall not be
included in net enrollment for state aid funding purposes under
§ 18-9A-2 of this code. Nothing in this subsection prohibits a
Hope Scholarship student from using the funds deposited in his
or her account on both services provided by a public school or
district and other qualifying expenses as provided for in § 18-
31-7 of this code.
Id. § 18-31-8(f).
The language of this statute raises a host of questions. First, and
fundamentally, the provisions of § 18-31-8(f) are internally inconsistent and impossible to
reconcile. The statute initially provides that the amount of reimbursement due to a public
school or school district that has provided services to a Hope Scholarship student is to be
governed by the ratio of those services to the total educational services, private and public,
the student has received. Presumably such a ratio would be determined by a simple
mathematical calculation, leading one to wonder what sort of “consultation” between the
Hope Board and the Department of Education (“the DOE”) is necessary. In the very next
sentence of the statute, however, county school boards are required to charge tuition for
the public-school services, which would seem to indicate that there’s no ratio involved in
determining reimbursement; the tuition rate is the cost of the public-school services, and
Hope Scholarship students can determine whether they are willing to pay those costs from
their scholarship funds.
3
Additional questions abound as well. What exactly is the role of the DOE in
its consultation with the Hope Board regarding “rules and policies for Hope Scholarship
students who want to continue to receive services provided by a public school or district”?
Does it have veto power over the Hope Board’s proposed rules and policies if it finds them
to be misguided, unworkable, inimical to the educational needs of public-school students
and/or Hope Scholarship students, or otherwise ill-advised? If not, does the Hope Board
just forge ahead anyway, i.e., make and enforce its rules and policies regardless of the
DOE’s objections? Second, what exactly are the respective roles of the DOE and the Hope
Board in determining that a public school or school district receives the “appropriate pro
rata share” of a participating Hope Scholarship student’s award? Does the DOE have to
enter into some sort of negotiation with the Hope Board in order to get paid for the services
provided by public schools to the Hope Scholarship students? What happens if the two
sides can’t agree on what’s “appropriate”? And how does the set rate of tuition figure into
all this? See text supra. Third, do each of the fifty-five county boards determine the tuition
rate for services provided to Hope Scholarship students in their schools (which would be a
gilt-edged invitation to an equal protection challenge), or is their function simply
ministerial, i.e., sending out the bills? And bills for what? If the county boards don’t
determine the tuition rate, who does? The State Board of Education (“the State Board”)?
The DOE? The Hope Board? The Legislature?
4
A significant constitutional issue may well exist here, depending on the
answers to the above questions, and none of those answers are readily apparent from the
language of the statute.
Article XII, Section 2 of the West Virginia Constitution provides in relevant
part that “[t]he general supervision of the free schools of the State shall be vested in the
West Virginia Board of Education, which shall perform such duties as may be prescribed
by law.” To aid in carrying out its constitutional and statutory duties and responsibilities,
the State Board “shall, in the manner prescribed by law, select the state superintendent of
free schools[,]” 4 id., who in turn “shall maintain a Department of Education at his office
at the state capitol, and he shall have authority to employ assistants and such other
employees as may be necessary.” W. Va. Code § 18-3-9. Thus, any diminution of the
authority of the DOE is a dagger thrust into the heart of the State Board and the State
Superintendent, whose duties of general supervision are constitutionally grounded.
In this regard, this Court held in W. Va. Bd. of Educ. v. Bd. of Educ. of the Cnty.
of Nicholas, 239 W. Va. 705, 806 S.E.2d 136 (2017) that the
4
See Pauley v. Bailey, 174 W. Va. 167, 168, 324 S.E.2d 128, 129 (1984), Syl. Pt. 1,
in part (“The West Virginia Board of Education and the State Superintendent of Schools,
pursuant to their general supervisory powers over education in West Virginia under W.Va.
Const. art. XII, § 2, and their specific duties to establish, implement and enforce high
quality educational standards for all facets of education under the provisions of Chapter 18
of the West Virginia Code, have a duty to ensure the complete executive delivery and
maintenance of a ‘thorough and efficient system of free schools’ in West Virginia[.]”
5
[g]eneral supervision” is not an axiomatic blend of words
designed to fill the pages of our State Constitution, but it is a
meaningful concept to the governance of schools and
education in this state. Decisions that pertain to education must
be faced by those who possess expertise in the educational
area. These issues are critical to the progress of schools in this
state, and, ultimately, the welfare of its citizens. In 1957, the
citizens of this state conferred general supervisory powers over
education and one need not look further than art. XII, § 2 of the
State Constitution to see that the “general supervision” of state
schools is vested in the State Board of Education. Unlike most
other administrative agencies which are constituents of the
executive branch, the Board enjoys a special standing because
such a constitutional provision exists.
W. Va. Bd. of Educ., 239 W. Va. at 713, 806 S.E.2d at 144 (citing W. Va. Bd. of Educ. v.
Hechler, 180 W.Va. 451, 455, 376 S.E.2d 839, 842-43 (1988). Further demonstrating the
critical importance of the powers and duties of our State’s educational institutions, and
their constitutional basis, “this Court has unequivocally held that legislative action that
impedes the general supervisory powers of the [board] is patently unconstitutional[,]” W.
Va. Bd. of Educ., 239 W. Va. at 713-14, 806 S.E.2d at 144-45, and that “[t]he determination
of the educational policies of the public schools of the State is vested in the [state board],
and, unless unreasonable or arbitrary, its actions relating to such policies will not be
controlled by the courts.” Syl. Pt. 1, Detch v. Bd. of Ed., 145 W. Va. 722, 117 S.E.2d 138(1960).
In short, the Legislature cannot diminish the powers and duties of the State
Board by authorizing the Hope Board to share in those powers and duties; yet West
Virginia Code section 18-31-8(f) can be read to do just that. If the Hope Board is authorized
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to establish education-related rules and regulations that have been disapproved by the DOE
– rules that involve public school classes and extracurricular activities made available to
Hope Scholarship students – this would violate the legal precept that “‘[r]ule-making by
the State Board of Education is within the meaning of ‘general supervision’ of state
schools pursuant to art. XII, § 2 of the West Virginia Constitution, and any statutory
provision that interferes with such rule-making is unconstitutional....’” Syl. Pt. 2, Bd. of
Educ. of Cnty. of Kanawha v. W. Va. Bd. of Educ., 184 W. Va. 1, 399 S.E.2d 31 (1990)
(quoting Hechler, 451 W. Va. at 452, 376 S.E.2d at 839, Syl. Pt. 2, in part). Further, if the
Hope Board is authorized to negotiate with the DOE over what constitutes the “appropriate
pro rata share” of funds to be reimbursed to a school district that has provided services to
Hope Scholarship students – services for which a set tuition rate has been established 5 ̶
then the Board is exercising authority that it does not, and can never, have: the authority to
reduce expenditures for public education. See Syl. Pt. 2, in part, State ex rel. Bd. of Educ.
of Kanawha Cnty. v. Rockefeller, 167 W. Va. 72, 281 S.E.2d 131 (1981) (“Because of
public education’s constitutionally preferred status in the State, expenditures for public
education cannot be reduced . . . in the absence of a compelling factual record to
demonstrate the necessity therefor.”).
5
As noted supra, West Virginia Code section 18-31-8(f) is silent as to the
mechanism for establishing this rate; however, the most reasonable inference to be drawn
from the statutory language is that each county school board does so for the schools in that
county.
7
All this being said, this Court has held repeatedly that “[e]very reasonable
construction [of a legislative enactment] must be resorted to by the courts in order to sustain
constitutionality, and any reasonable doubt must be resolved in favor of the
constitutionality of the legislative enactment in question.” Syl. Pt. 1, in part, State ex rel.
Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965). Because West
Virginia Code § 18-31-8(f) can be read as establishing a mechanism for consultation
between the Hope Board and the DOE that does not encroach on the constitutional powers
and duties of the State Board, I concur with the Court’s judgment that the Hope Scholarship
Act, West Virginia Code §§ 18-31-1 to -13, is not facially unconstitutional. Only time will
tell whether the Act, or any of the provisions thereof including § 18-31-8(f), is subject to
an as-applied challenge.
For these reasons, I respectfully concur.
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