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West Virginia Supreme Court Agrees with Goldwater: Upholds School Choice Program

October 6, 2022

The West Virginia Supreme Court of Appeals today upheld the constitutionality of that state’s school choice program—known as the Hope Scholarship Program—which is modeled on Arizona’s own pathbreaking Empowerment Scholarship Account (ESA) program. In a brief, two-page statement, the justices revoked a trial court order which blocked the Hope Scholarship Program from being implemented, and promised a more thorough explanation in the future.

The trial court had issued an injunction against the Hope Scholarship Program on the grounds that allowing parents to select schools for their own children, including private schools, would violate the state Constitution’s requirement that the legislature provide a system of public schools. That requirement, the trial judge said, barred lawmakers from establishing any additional or alternative programs. As we explained in our friend of the court brief, that argument was both senseless and contrary to long-established West Virginia law, which has always allowed lawmakers to create additional programs for the education of children.

The trial judge also declared that students who remain in public schools would suffer if other students exited the government system for private alternatives. But as we pointed out in our brief, that has not been the experience in Arizona, where academic outcomes of public school students have improved at the same time that the state’s school choice programs have expanded.

Even more remarkably, the trial court declared that the Hope Scholarship Program was a “special law”—meaning a law targeted only at particular individuals—because some people have more money than others, and therefore some recipients of scholarship funds would be able to afford better schools than others. As we argued in our brief, this bizarre theory would mean that all government programs are unconstitutional—since the outcomes are never absolutely equal.

Today’s decision reversing the trial court is another breakthrough in the movement for school choice—and welcome news for those who believe that parents, not government bureaucracies, should be the ones to make important decisions for the future of their children.

You can learn more about the case here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.



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