Hope for Educational Choice in West Virginia and Kentucky

Joshua House
Joshua House
 ·  December 1, 2022

Education is not one size fits all, which is why parents, not the government, should select the educational offerings that best meet their children’s needs. But educational choice programs are also not one size fits all. Last year, West Virginia and neighboring Kentucky each passed different types of programs to give parents more educational choice. 

Defenders of the status quo made the same tired argument against each: that the government can’t promote educational choice. But that’s wrong. In West Virginia, the state constitution says nothing that would restrict support for non-public education, and, indeed, it expressly encourages the state to promote educational policies in addition to the public schools. 

Meanwhile, the members of the educational establishment challenging Kentucky’s program relied on the false premise that tax-credit-eligible donations are public funds and thus subject to constitutional limits on raising or spending public funds. But as the U.S. Supreme Court itself has held, tax credit programs do not use public money. That money comes from private donors. 

If the arguments looked familiar, so did IJ’s response: As we have done every day for the past 30-plus years, we stepped in on behalf of parents to defend educational choice. And over a two-week period this fall, IJ argued in defense of both West Virginia’s and Kentucky’s programs in those states’ respective highest courts. 

Good news arrived quickly. After a mere two days of deliberation, the West Virginia Supreme Court of Appeals allowed the program to move forward, reversing the trial court’s injunction. 

The ruling is fantastic news for West Virginia families. West Virginia’s Hope Scholarship Program is a sweeping, near-universal education savings account program. Under the program, families who withdraw from full-time public school can receive money in an account, which they can then spend on any educational services.  

Those services can include private school tuition, homeschooling supplies and curricula, transportation to educational services, or even the à la carte purchase of public school resources. IJ client Katie Switzer, for instance, plans to use her account for a combination of homeschooling resources, educational speech therapy, and public charter school coursework.  

As for Kentucky, the state’s supreme court is still deliberating. But although the program’s particulars differ from West Virginia’s, the outcome should be the same. Kentucky’s Education Opportunity Account Program grants tax credits for donations to nonprofits that manage and grant education savings accounts. That means the accounts are 100% donation-supported and do not take any funds from the Kentucky Treasury.  

The accounts can be used for an array of educational resources: homeschooling, tutoring, technology, transportation, and more. Low- and middle-income families can apply for accounts even if they remain in public school. And in Kentucky’s largest counties, families can use their accounts for private school tuition. IJ client Akia McNeary plans to use accounts for the private school tuition of her two younger children. But public school is working for her eldest son, and she wants to use his account for college-prep courses. 

That flexibility is vital because no two kids are the same. Neither are any two educational choice programs. But parents and students across the country can count on one thing to never change: IJ will be there to defend educational choice from bogus legal challenges by defenders of the public school status quo.

Josh House is an IJ attorney.

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