West Virginia
In general, the West Virginia Supreme Court interprets its state constitution in parallel fashion to the federal Constitution. Accordingly, there is no reason to doubt that, in light of Espinoza and Zelman, all forms of educational choice are constitutionally permissible options for West Virginia policymakers to consider and enact.
Constitutional Provisions
Compelled Support Clause
“[A]nd the legislature shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this State, to levy on themselves, or others, any tax for the erection or repair of any house for public worship, or for the support of any church or ministry, but it shall be left free for every person to select his religious instructor, and to make for his support, such private contract as he shall please.” West Virginia Const. Art. III, § 15.
Relevant Case Law
Cooper v. Board of Education, 478 S.E.2d 341 (W. Va. 1996)
The West Virginia Supreme Court held that the 14th Amendment’s Equal Protection Clause was not violated when the state stopped transporting private school students at public expense. The state may treat public and private school students differently when allotting state education funds if it has a valid financial reason for doing so.
Janasiewicz v. Board of Education, 299 S.E.2d 34 (W. Va. 1982)
Acknowledging changes in federal equal protection jurisprudence, the West Virginia Supreme Court held that failing to provide transportation to private school students was not a violation of the 14th Amendment. However, the Court reaffirmed its earlier conclusion that school boards were required by statute to provide either transportation or an equivalent stipend to private school students and that doing so did not constitute a violation of the First Amendment or West Virginia’s Compelled Support Clause.
State ex rel. Hughes v. Board of Education, 174 S.E.2d 711 (W. Va. 1970), cert. denied, 403 U.S. 944 (1971)
The West Virginia Supreme Court held that a county school board’s refusal to transport Catholic school students on its buses violated the provisions of a West Virginia statute requiring it to transport “all children of school age.” It then went further and held that the school board’s policy deprives Catholic children and their parents of their right of religious freedom in violation of the provisions of the First Amendment and even more clearly in violation of the comprehensive provisions of the Compelled Support Clause.
Gissy v. Board of Education, 143 S.E. 111 (W. Va. 1928)
The West Virginia Supreme Court required a public school board to reimburse parents who complied with West Virginia’s mandatory education statute by sending their children to a private, parochial school because no public high school existed in their district. The school board had argued that it was only required to reimburse for public school tuition.
Existing Private School Choice Programs
Hope Scholarship Program
West Virginia §§ 18-31-1 through 18-31-13
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
