Lawmakers passed the bill creating the Hope Scholarship during the 2021 legislative session. Photo by Perry Bennett/WV Legislature

With the effects of West Virginia’s Hope scholarship in its first year, and its impact on public school funding yet to be felt across the state, the treasurer’s office has opened the door to more students outside the public school system to receive the roughly $4,300 per student in taxpayer money that would otherwise go to public schools.

On Jan. 4, the treasurer’s office filed an emergency amendment to their rule governing the distribution of Hope Scholarship funds that will allow it to be used towards “microschool” tuition. Now, the Secretary of State’s office has until Feb. 15 to approve the rule. If they don’t make a decision by then, it will automatically take effect for at least the next 15 months. 

“It’s just pulling money from public education to a system with no accountability and no oversight,” said Dale Lee, the President of the West Virginia Education Association.

Last year, a new law allowing microschools passed both chambers with a split vote, with some Republicans joining Democrats in opposition.

A microschool is something between a private school and homeschooling: a group of students of any size learning under at least one teacher. Putting the distinction in statute clarified that microschools do not have to follow laws governing private schools, even if they resemble one in some ways.

Sen. Patricia Rucker, R-Jefferson, a champion and sponsor of the law, described a microschool as offering more control to parents over what their children learn and how.  

“If they want to see something being taught to their child, it’s a direct communication and relationship that they have with the person they hired,” Rucker said. “They say, ‘we want this to be the curriculum, we want this to be the methodology, we want these hours.’ They don’t have to follow any rules like you need to be open from these hours to these hours or you need to provide food.”

But critics of the concept from both sides of the aisle say there’s essentially no regulatory scrutiny for microschools. The schools have less stringent requirements for attendance and curriculum than typical schools, and efforts to amend the microschool bill to require safety regulations like smoke and carbon monoxide detectors failed. 

If the rule is approved by the Secretary of State’s office, these students can use the Hope Scholarship to pay for their tuition, like those at private schools across West Virginia. The scholarship requires participants to annually submit either standardized test scores scoring above the 23rd percentile, or showing progress if below. Students can alternatively submit a portfolio review by a certified teacher.

The Hope Scholarship program itself has already been the subject of controversy and attacks by advocates who want more investment in the public school system. A lawsuit brought by three West Virginia parents of public school students argued the program was unconstitutional because the amount of money taken out of the public school system and granted to scholarship recipients could undermine the state’s ability to ensure a constitutionally guaranteed right to “thorough and efficient” public school system. 

“The voucher law threatens the fundamental rights of students across this State to a sufficiently funded public education,” state Board of Education President L. Paul Hardesty and State Superintendent of Schools David Roach argued in a joint filing. “The voucher law has only minimal academic testing requirements to ensure that a private or homeschooled student is progressing and meeting educational standards.”

In October, the state Supreme Court ruled in favor of the program in a 3-2 decision.

Around that time, discussions were underway between the Treasurer’s office and the Legislature about how to clarify that students at newly-codified microschools could obtain Hope funds, in spite of such schools not being mentioned in the legislation establishing the program. 

Sen. Patricia Rucker, R-Jefferson, at a Senate Education meeting. Photo by Will Price, WV Legislative Photography.

Rucker says she believes that legislation would not be necessary, as it was always her intention for Hope Scholarship funds to cover emergent types of alternative education. 

“My opinion’s been consistent that I don’t think we need legislation to do it,” Rucker said. “[The Hope Scholarship Board] was created specifically for that purpose. The last thing I want is to have to bring back that legislation every year because somebody’s come up with another new idea.”

Now, the Treasurer’s Office is moving forward to include microschool students through a change to the rules, rather than new legislation. When a new law is passed, state agencies directed with carrying it out usually have to write rules governing how they’ll do it. Those are then approved by the Legislature through a process called rule-making. If there’s a gray area in the law, it can either be defined by those rules, or by amending the legislation to clarify the law’s intent. 

While the latter is a more arduous and time-consuming process, it also allows the public more time to offer input than simply agreeing to a rule written by a state department’s staff. Passing legislation also minimizes the chance of a lawsuit if a rule is perceived to be at odds with a law.

As an emergency rule, the clarification to Hope eligibility will be in effect for 15 months if approved by the Secretary of State’s office. The change will eventually have to be approved by the Rule-making Review committee, and then the full Legislature, to remain effective.

West Virginia Treasurer Riley Moore’s spokesperson said the rule ensures that the Hope scholarship can be used as intended “to encompass all of the alternative education opportunities the legislature has approved for the state, one of those being microschools.” 

Currently, it’s unclear how many microschool students exist in West Virginia or will be eligible for the Hope Scholarship. 

“That number doesn’t exist right now,” said Treasurer’s office staff member James Fuerhoff, who has been integral to Hope Scholarship implementation efforts. As a reason, Fuerhoff said that because microschools have just been defined in law, students who may have been participating in them are simply counted as being homeschooled. “I don’t know any way to calculate how many students might participate in microschools in future years.”

This year, 2,876 students were awarded the Hope Scholarship, down from the roughly 3,000 that were reported to receive it before the lawsuit saw some families change their plans.

In order to get the scholarship, students must first be enrolled in a public school for 45 days, though the Treasurer’s office and Hope Scholarship website encourage parents to enroll their kids in public schools with the intention of pulling them out after the 45 day mark.

Ian Karbal is a Report for America corps member, and the state government watchdog reporter for Mountain State Spotlight.