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West Virginia Supreme Court Upholds Educational Freedom for Mountain State Families

November 21, 2022

The West Virginia Supreme Court of Appeals last week issued an opinion upholding the constitutionality of the state’s Hope Scholarship Program. Modeled on Arizona’s own pathbreaking Empowerment Scholarship Account (ESA) program, which the Goldwater Institute created more than a decade ago, the Hope Scholarship Program enables parents to choose the schools that will best serve their children’s needs, instead of being forced into the existing one-size-fits-all system.

The Goldwater Institute filed a brief in September arguing that a state trial judge’s rationale in declaring the program unconstitutional didn’t make sense. The judge had claimed the program diverted funds from state-run schools in violation of the West Virginia Constitution’s requirement that the state operate a public education system. The trial court also declared that the law violated the state constitution’s prohibition on “special laws”—that is, laws that apply only to particular individuals or small groups of people.

But as the Goldwater Institute’s brief pointed out, the Hope Program did not eliminate any existing public schools, and the law creating it opened the program to anyone with school-age kids—hardly a “special law.” What’s more, we explained how Arizona’s experience under our ESA program has actually proven the opposite of the doomsaying that anti-school choice advocates typically voice. In fact, evidence shows that the ESA program has led to better outcomes both for students who participate and those who remain in the public school system.

In early October, the West Virginia Supreme Court announced that it would be reversing the trial court’s ruling and, siding with our brief, upholding the Hope Scholarship Program. But it didn’t release its full decision until Thursday. “The West Virginia Constitution does not prohibit the Legislature from enacting the Hope Scholarship Act in addition to providing for a thorough and efficient system of free schools,” the justices declared. “The Constitution allows the Legislature to do both of these things.” To hold “that the ‘free schools’ clause ‘only’ permits the Legislature to provide a thorough and efficient system of free schools,” the Court concluded, “would drastically alter [the Constitution’s] plain meaning and is contrary to our direction to apply the Constitution as written.”

As for the prohibition on “special laws,” the Hope Scholarship law “operates uniformly on all families who voluntarily choose to participate”—which is basically the opposite of a special law.

The West Virginia ruling is a crucial victory for parents and kids who need better options than they are currently provided by centrally planned, top-down, bureaucracy-oriented, government-run school systems. Mountain State families should celebrate the freedom to choose what’s best for their kids.

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



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