A Kanawha County circuit judge Wednesday struck down West Virginia’s nonpublic school vouchers law, which was the nation’s most expansive “school choice” law when the Legislature passed it last year.
“Any action negatively impacting public school funding is subject to strict scrutiny,” Judge Joanna Tabit said. “And the Legislature can reduce funds for public education only, only if they can show a compelling governmental interest. Non-public education is not a constitutional interest of this state, and I am troubled that there seem to be no educational standards or accountability to the public.”
Tabit ruled that the program violates the West Virginia Constitution.
State Attorney General Patrick Morrisey, who sits on the board overseeing the voucher program and whose office recently intervened directly in the case, tweeted Wednesday afternoon that his office will appeal.
Joshua House, a Virginia-based attorney representing two parents who favor the program, said his clients “do plan to appeal.” The number of children set to participate next school year was somewhere between 2,000 and 4,000, with different numbers coming from different state agencies.
“To have it shut down with only a month’s notice before school starts is really shocking,” said Katie Switzer, one of the parents House represents.
If the program had been allowed to proceed, in the upcoming school year, participating families would have started receiving $4,300 per child to spend on a nearly unlimited variety of K-12 public school alternatives, including religious and secular private schools and homeschooling.
Funding would have continued for the duration of the child’s enrollment in the program, although the annual amount would have varied.
The program was open to rising kindergartners whose parents diverted them from public schools and to older students already in public schools whose families chose to withdraw them. In the future, it would have likely grown to be open to all West Virginia children, including those currently being privately and homeschooled.
At a Wednesday hearing, Tabit peppered House with questions, with House struggling to get a point in edgewise in the back-and-forth.
House, who works for the Institute for Justice, said, “Section 12, Article 12 says the Legislature has a duty to promote intellectual and moral achievement. It’s allowed to experiment ...”
“How are we going to know if we’re promoting any moral or intellectual achievement if there is no accountability?” Tabit interjected.
She also said voucher-funded private schools could discriminate against children based on things public schools cannot under federal law, including children with special needs.
Students in the voucher program, called the Hope Scholarship, wouldn’t have to take the same standardized tests or meet the same graduation requirements as public school students, leaving little ability to compare their progress without a designed study.
In January, three West Virginia public school parents sued Republican Gov. Jim Justice, Republican state Treasurer Riley Moore, the leaders of the Republican legislative supermajorities, state Board of Education President Miller Hall and state schools Superintendent Clayton Burch to stop the program. One of the parents, Karen Kalar, has since dropped out of the case.
The parents’ lawsuit asked the court to block the program from taking effect because, they alleged, it violates multiple parts of the state constitution.
When the parents filed a motion for a preliminary injunction — a request to at least temporarily halt the program while the case was ongoing — Hall and Burch, the state’s top public education leaders, took their side.
The other state officials asked the court to dismiss the case, and a couple of other parents filed motions on their side, saying they can’t afford nonpublic schooling for their children without the program.
But Tabit didn’t just grant the preliminary injunction Wednesday. She permanently blocked the program from moving forward, unless she’s overruled on appeal.
Lawyers in the case included some from out-of-state groups, including the Education Law Center on the side trying to stop the program and the Institute for Justice on the side trying to save it.
Local Bailey & Wyant attorneys represented the state education officials, and the local firm of Hendrickson & Long, plus the international firm Paul Hastings, represented the parents trying to stop the program. In all, about 60 people filled the Charleston courtroom Wednesday, including some state school board members, school employee union leaders, school-choice advocates and multiple journalists, and Tabit noted the abnormally large crowd.
The Hope Scholarship law had a trigger that would be pulled, vastly increasing eligibility, if participation did not exceed roughly 5% of statewide public school enrollment within the first two years. If that 5% wasn’t met, then, starting in July 2026, parents of all current private- and homeschoolers would have been able to get the vouchers. The program’s biggest projected financial effect was the $103 million annually in new state funding required to subsidize those who weren’t going to public schools anyway.
“For the first time in America, this statute would have the state subsidizing all private school and homeschool children’s education,” said Tamerlin Godley, a Los Angeles-based Paul Hastings attorney.
Tabit said, “$100 million is nothing to sneeze at, $4,300 per student and no limitation on that ... no accountability.” She expressed educational and legal concerns about the program reducing funding for public schools, seeing as the state’s funding formula largely funds public schools based on their enrollment numbers.
House argued that “any money in the state could go to public education. The money spent on a road could go to public education.”
Around the end of May, the Treasurer’s Office, which administers the program, said it had approved these vouchers for 3,010 students. But in Burch and Hall’s filing, their lawyers wrote that, as of June 13, only 2,200 approved students were recorded in the statewide education information system.
“It is unknown why there is a discrepancy,” their filing said. As of June 20, the Treasurer’s Office was reporting 3,150 approved students.
Whatever the true number, the participation rate is currently about 1% or less, far short of the 5% trigger clause.
“I am deeply disappointed that a judge has decided to halt this program, which would help so many families in West Virginia,” Moore said in a news release. “More than 3,100 West Virginia students were relying on having this funding in the fall, and now — at the last minute — they may not be able to get the educational services they want and need.”
The minority Democratic Party caucus in the state Senate issued a news release praising the ruling.
“The Hope voucher, left unchecked and unregulated, is extreme, unconstitutional and would ultimately lead to consolidation or closure of West Virginia public schools,” Sen. Richard Lindsay, D-Kanawha, said in that release. “We warned the supermajority of this in 2021 and attempted to amend in commonsense measures. Unfortunately, they would have none of it. Choice is fine, but not at the risk of public education. While I agree with the ruling, I am sad for the families that have been granted the voucher. They are in limbo because of a law that was constitutionally suspect or infirm from the beginning.”
While participating students would have been barred from enrolling full-time in public schools, their parents could still use the money to purchase services from willing public schools.
Switzer, one of the parents who planned to use the program, said she wanted to use part of the money to send her two oldest children to half days at a Morgantown charter school that has a reading program for students with dyslexia. Charters, while privately run, are classified as public schools.
Switzer said the other money would have gone to her daughter’s speech therapist for a disorder that, she said, public schools aren’t used to, and to her son for swimming lessons or an after-school program or curriculum for at-home lessons.
“I’m scared for what we’re going to do with such short notice,” she said.
