Public school parents filed suit in a West Virginia court today to challenge the state’s expansive private school voucher law, which violates several provisions of the state constitution and will siphon off millions of dollars from public education. The plaintiffs, who are West Virginia public school families, are represented pro bono by Paul Hastings LLP and Education Law Center in partnership with the Public Funds Public Schools (PFPS) campaign and by the West Virginia office of Hendrickson & Long.

West Virginia’s voucher law, House Bill 2013 (HB 2013), was enacted earlier this year. It creates an Education Savings Account (ESA) voucher program called the Hope Scholarship, slated to begin accepting applications in March 2022. HB 2013 redirects public funds to private accounts controlled by ESA voucher recipients, which they can use to pay for private school tuition and/or a range of private education expenses including homeschooling.

These ESA vouchers are open to all West Virginia students currently attending public school or entering kindergarten, regardless of family income. Over time the voucher program will grow to subsidize the private education of all private school and homeschooled students. Because the voucher does not cover the full cost of private education, it will be used by the most affluent students, those without need for any subsidies, at the expense of students in the state’s public schools. The program is projected to cost West Virginia over $100 million per year from the state treasury when fully operational.

“The money that would be spent on the voucher program should go to our severely underfunded public schools,” said plaintiff Travis Beaver, parent of two children in West Virginia public schools. “The money taken out of our schools will mean less special needs funding, less for gifted programs and robotics, fewer teachers and academic resources. We already lack funds, and that’s impacting my children and every child in our schools.”

A recent Education Law Center report shows West Virginia’s public school funding levels are well below the national average, and the state distributes school funding inequitably, shortchanging the neediest communities and students.

In addition to diverting funding critically needed by public schools, the voucher law contains no education quality standards and virtually no accountability to the public about how public funds will be used. It also fails to protect students and families from discrimination by private schools, including refusing admission or disciplining students based on their disabilities, religion, or LGBTQ status.

The lawsuit, Beaver v. Moore, asserts that HB 2013 violates the explicit language of the Education Article of the West Virginia Constitution in several ways. First, the Legislature can only provide for a system of free public schools and cannot support a separate system of private and home schooling. Nor can the Legislature take any action that undermines its duty to provide public education by diverting public funds to private education.

Further, under the West Virginia Constitution the Legislature can only reduce funds available for public education for a compelling, narrowly tailored purpose. The voucher law satisfies neither criterion because the state has absolutely no interest in funding private schools, and the voucher program is extremely broad, with very limited criteria restricting eligibility.

Finally, the lawsuit claims the voucher law violates the state constitution’s presumption against laws that treat people differently, called “special laws,” because it excludes voucher students from critical antidiscrimination protections afforded public school students.

“Vouchers have been proven to harm educational outcomes, exacerbate segregation, promote discrimination, and divert critical resources away from public schools,” said Tamerlin Godley, a partner at the law firm Paul Hastings LLP and lead attorney in the case. “West Virginia’s voucher law is one of the most pernicious we’ve seen.”

“We will not stand by as West Virginia officials, who should be prioritizing the public schools that are open to all and serve the vast majority of students, turn instead to funding vouchers,” said PFPS Director Jessica Levin, a senior attorney at Education Law Center. “We are honored to represent the families challenging this law and support the many West Virginians fighting for their public schools.”

The plaintiff families in Beaver v. Moore are represented pro bono by the law firm Paul Hastings LLP, Education Law Center, and the West Virginia office of the firm Hendrickson & Long. Education Law Center co-leads the Public Funds Public Schools campaign, which works to ensure public funds are spent on public education and not diverted to private schools. Paul Hastings partner Tamerlin Godley has spearheaded other successful PFPS efforts, including NAACP v. DeVos, which stopped former Secretary of Education Betsy DeVos from diverting hundreds of millions of dollars in pandemic relief funds to private schools, and a 2016 lawsuit that permanently enjoined a similarly expansive voucher bill in Nevada.