State v. Beaver, 22-616

CourtSupreme Court of West Virginia
PartiesState of West Virginia, Katie Switzer and Jennifer Compton v. Travis Beaver, Wendy Peters, David L. Roach and L. Paul Hardesty
Docket Number22-616
Decision Date18 November 2022

State of West Virginia, Katie Switzer and Jennifer Compton
v.

Travis Beaver, Wendy Peters, David L. Roach and L. Paul Hardesty

No. 22-616

Supreme Court of Appeals of West Virginia

November 18, 2022


WOOTON, Justice, concurring:

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

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
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.

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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...

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