Professor Joshua Weishart Authors Brief of Amici Curiae in West Virginia Supreme Court of Appeals Case

West Virginia University College of Law professor Joshua Weishart recently authored an amicus brief, submitted to the Supreme Court of Appeals of West Virginia in West Virginia v. Beaver, No. 22-616.

A summary of Brief of Amici Curiae Constitution and Education Law Scholars in Support of Respondents in West Virginia v. Beaver follows:

In 2022, the Supreme Court of Appeals of West Virginia considered a challenge to the constitutionality of “The Hope Scholarship Act” which created a voucher program through education savings accounts (ESA)—a deposit of public funds that parents who withdraw their children from public school can use for, among other things, private school or homeschool purposes.

At the time it was enacted, the Act was purportedly “the nation’s broadest education savings account bill” with no income limitations, minimum eligibility requirements, and virtually no antidiscrimination protections. When fully implemented, the voucher program is projected to cost more than $100 million in taxpayer dollars and, by decreasing public school enrollment, significantly reduce public school funding.

Constitution and Education Law Scholars submitted this amicus brief contending that the Act violates the West Virginia Constitution based on a simple but well established principle of law: “the state may not do indirectly what the constitution forbids it to do directly.”

Here, if the state cannot directly reduce public school funding and enrollment in ways that risk educational deprivations and disparities, it cannot do so indirectly through an expansive ESA voucher program that is designed and scaled to compete statewide for students (and therefore funding) with the public education system. Likewise, if the state cannot directly by general law discriminate against students, it cannot do so indirectly by a special law that permits publicly subsidized private school ESA voucher recipients to discriminate.

Find more of Professor Weishart's scholarship on SSRN and his SelectedWorks scholarship profile.

A headshot of Professor Joshua Weishart