2021, the new, reigning, “Year of School Choice” saw two especially startling things happen. One was Kentucky enacting a private school choice program, getting itself on the school choice board. The other was West Virginia doing the same. Yesterday, to kick off our School Choice Week postings, Colleen Hroncich brought you up to speed on the Bluegrass State. Today, let’s quickly visit the Mountaineer State.
Like Kentucky, West Virginia had long been a holdout on not just private school choice, but any major choice, not passing a charter school statute until, well, 2021! And like Kentucky (which passed its charter law in 2017) West Virginia just a few years ago had seen a massive “Red for Ed” wave – indeed, it started there – a rush of teacher power focused on getting big spending increases for public schools. Usually, major displays of public‐school teacher power don’t bode well for school choice.
Enter COVID-19.
Like much of the rest of the country, by 2021 many West Virginians were likely frustrated with public schools that often would not or could not respond to their needs. That set the stage for state legislators to create a new education savings account program – the Hope Scholarship – for which any family is eligible as long as they have a child who has been in a public school or is entering kindergarten. Each year, an enrolled family will get $4,600 per child placed in an account on which they can draw for many education uses, including private school tuition, tutoring, and therapies.
Alas, just as in Kentucky, West Virginia’s program is the target of a lawsuit. A few days ago, the New Jersey‐based Education Law Center filed a suit to halt implementation of the program on behalf of two parents and a teacher, claiming Hope would violate the state constitution’s promise of a “thorough and efficient system of free schools.”
Does the claim hold water? It doesn’t seem to.
Nothing about maintaining a system of free schools means the state cannot also provide education funding to families that parents largely direct. And choice helps to foster an “efficient” education system, having repeatedly been found to prod public schools to improve. Finally, the West Virginia Constitution includes a provision that says, in part, “the Legislature shall foster and encourage, moral, intellectual, scientific and agricultural improvement.” That could be interpreted as an open‐ended authorization of something like an education savings account program, which fosters and encourages intellectual – and for many schools, moral – improvement.
Thankfully, West Virginia’s program is not enjoined, unlike Kentucky’s. But choice opponents tend to fight until the last legal action is exhausted, so this could be a long battle. And that could mean that it is not quite Heaven in West Virginia.
