Victory for West Virginia Families: Historic Education Opportunity Program Declared Constitutional

Last March, the West Virginia Hope Scholarship Program was signed into law, expanding education freedom for 93% of K-12 students in the state. At the time, it was the most expansive educational savings account (ESA) program in the country, surpassed today only by Arizona’s Empowerment Scholarship Program which allows every student in the state to participate.

ESAs are government-authorized savings accounts that allow parents to direct the flow of funds toward any pre-approved educational expenses that they feel are important for their student. They are different from other policies, like vouchers or tax-credit scholarships, in that parents can utilize the money for things beyond private-school tuition like books, supplies, tutoring, test fees, and more. Thus, ESAs allow public funds to truly follow the student.

Over 3,000 families were accepted into the Hope Scholarship Program just a few months after it became law, with each student awarded $4,298.60 for the 2022-2023 school year. This was great news for families seeking a better education for their children. Then, Kanawha Circuit Court Judge Joanna Tabit issued an injunction on July 6, halting the program and taking the opportunity granted to those 3,000+ families away right before the start of the school year.

However, the West Virginia Supreme Court took up the case, and after two days of hearing oral arguments, they overturned the injunction in an expedited decision on October 6th. A more detailed opinion will be issued a later date.

Opponents of the scholarships argue the program is unconstitutional. They cite the West Virginia Constitution, which, like most state constitutions, provides “for a thorough and efficient system of free schools.” Opponents argue that the Hope Scholarship Program takes money away from West Virginia’s public schools, therefore violating the state constitution. 

During oral arguments, Tamerlin Godley, a lawyer representing the parents suing to block the Hope Scholarship, argued that ESAs “[take] the money that the state would have appropriated to the system of free schools… [The Hope Scholarship] is not providing vouchers in addition to public education. It is providing it instead of.” However, West Virginia Solicitor General Lindsay See argued that “when the Constitution talks about a duty to fund public schools, that’s the floor, not the ceiling on what the Legislature’s able to do” and that Hope Scholarships do not prevent West Virginia from providing free education as mandated by their Constitution.

The “taking money away from public schools” argument is commonly employed by opponents of education freedom. Unfortunately, this is often far from the truth. The reality is that education funding often comes from three distinct buckets of money – state appropriations, local property taxes, and federal grants. The Hope Scholarship Program only redirects state appropriations to a parent-driven account, so each student receives a maximum of 38% of the total value of public school per-student funding. Since an affected public school no longer needs to teach that student, but still gets to keep their portion of local and federal funding, the per-pupil spending amount goes up. 

Allowing more education freedom does not harm public school students. In fact, it does the opposite. For instance, an EdChoice study found that out of 28 studies on school choice programs in the United States, 25 of the programs had a positive effect on public school students’ test scores. Parents of school-aged children are also very supportive of ESAs, with 84% holding a favorable view of them.

Not only is the claim that ESAs “defund public schools” false, but it ignores the fact that public schools are not going to be the best option for every student. Some students will learn better at home, online, or elsewhere depending on their individual needs. Without the Hope Scholarship Program, thousands of West Virginia students and their parents would miss out of education opportunities that best fit their unique needs.

Policymakers who want to learn more about ESAs and freedom in education can look to ALEC’s new model policy, The Hope Scholarship Act, which is modeled after West Virginia’s ESA program and expands eligibility to all students. 

In Depth: Education

An excellent education has long been recognized as key to the American Dream. Unfortunately, the current monopolistic and expensive K-12 education system is failing our students, leaving them unprepared for college, careers, or life. Similarly, our higher education system is leaving students with higher debt burdens and fewer career guarantees…

+ Education In Depth