The well-financed wave of school privatization reached West Virginia last year as legislators pushed through an expansive voucher scheme designed to siphon millions of public dollars from the state’s underfunded public schools to subsidize private schools that discriminate against students and families.

But West Virginia public school parents are fighting back. They filed a lawsuit, Beaver v. Moore, challenging the constitutionality of the voucher law and, in March, moved for a preliminary injunction to block the state from launching the voucher program.

State officials, supported by pro-voucher lawyers, are now trying to have the lawsuit thrown out of court. They don’t want the court to decide the merits of the parents’ constitutional claims and hear evidence of the concrete harms to public education in West Virginia if the state diverts massive amounts of taxpayer dollars to underwrite unaccountable private and home schooling.

“The parents’ lawsuit shines a bright light on the numerous ways private school vouchers violate West Virginia’s Constitution and harm the state’s students and its public schools,” said Tamerlin Godley, partner at Paul Hastings LLP and lead lawyer for the parent plaintiffs.

Yesterday, the parents filed a brief opposing the State’s effort to have the case dismissed. The brief makes clear the parents’ constitutional claims against the voucher law are well-founded, and the case should proceed through the courts.

As the parents explain in their brief: “Simply put, the Legislature cannot enact laws that undermine public education to fund private education expenditures nor allow students receiving publicly funded education to experience discrimination. The West Virginia Constitution does not allow it.”

West Virginia’s 2021 voucher law authorizes the broadest voucher program in the nation, open to all students who attend public school for 45 days or are entering kindergarten, regardless of family income. It uses the Education Savings Account (ESA) format, a type of voucher popular with those intent on privatizing public education.

Under the voucher law, the State of West Virginia deposits public funding in private accounts for use on a wide range of expenses including private school tuition and homeschooling. There are no accountability or quality safeguards. Over time, the law will force West Virginia taxpayers to subsidize all private and homeschooling in the State, totaling over $100 million a year.

The brief filed yesterday by the Beaver parents highlights the numerous ways the voucher law violates the Education Clause of the West Virginia Constitution, which requires the Legislature to provide and maintain public schools offering a quality education to all students. The Legislature has no authority to fund a separate system of private schooling that makes it impossible to provide a “thorough and efficient system of public schools,” which in West Virginia are already severely underfunded. The voucher law also violates the State Constitution’s prohibition against “special laws” that treat similar people differently because it excludes voucher students from critical protections afforded public school students against discrimination based on disability, religion, or LGBTQ status.

The West Virginia parents will have their day in court on July 6, when the Circuit Court of Kanawha County in Charleston will hold a hearing on the case.

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 law in Nevada.

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Public School Parents Urge West Virginia Court to Halt Voucher Program