The attempt to make West Virginia a national leader in school choice has hit a legal roadblock. Kanawha County Circuit Court Judge Joanna Tabit on Wednesday blocked the state’s implementation of the Hope Scholarship.
The state Legislature created the Hope Scholarship program in 2021 to allocate state money to help parents send their children to private schools, pay for tutoring and other educational services, or purchase supplies. More than 3,000 students have been awarded the first scholarships and were scheduled to start classes this fall.
“In my view, the Legislature has violated its constitutional level obligations regarding public education by enacting House Bill 2013 for the Hope Scholarship fund,” the judge said.
Tabit was referencing Article XII of the state Constitution: “The Legislature shall provide, by general law, for a thorough and efficient system of free [emphasis added] schools.”
In fact, the section of the Constitution dealing with school uses the word “free” 10 times. The document further requires that public funds shall be used to pay for the free schools. Those who challenged the Hope Scholarship contend the state’s allocation of public funds for private schools exceeds the mandate by the Constitution.
The supporters of the law will appeal the decision to the state Supreme Court and West Virginia Attorney General Patrick Morrisey is anxious to make the state’s case. “We will appeal because this is an important law that provides parents greater freedom to choose how to educate their children.”
Perhaps the argument will rest on the definition of the word “free.” The State Supreme Court is going to have to dig deep on this one to try to sort out the intent of West Virginia’s framers when they wrote Article XII of the Constitution.
Opponents of the law believe that free schools mean public schools, since students are not charged tuition. If that is the case, state funds, regardless of the source, cannot be diverted to private schools.
However, it can also be argued that if state funds are used to pay for a private education, then the student is essentially attending a school at no cost to them, thus meeting the constitutional requirement of a “free” education.
A Gallup Poll last year found that a majority of those questioned (54%) are dissatisfied with the quality of education students receive in K-12, and states are responding by offering parents educational opportunities beyond traditional public schools.
The public school system is an important institution in our country. It is an egalitarian system that, at least in theory, gives all students a chance to be an informed and productive member of society.
Of course, it also has significant shortcomings. In West Virginia, test scores are poor, and too many classes are taught by teachers not certified in the appropriate discipline. The 3,100 students who have qualified for the Hope Scholarship demonstrate that parents want more for their education dollar.
However, the will of the people, as reflected by the creation of the scholarship by the Legislature, must also comply with the state Constitution. That is a concept worthy of instruction in public and private schools.
