State of West Virginia, Katie Switzer, and Jennifer Compton v. Travis Beaver, Wendy Peters, David L. Roach, State Superintendent of Schools, and L. Paul Hardesty, President of the West Virginia Board of Education

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term FILED
_______________
November 17, 2022
released at 3:00 p.m.
No. 22-616 EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
KATIE SWITZER and JENNIFER COMPTON,
Petitioners
v.
TRAVIS BEAVER, WENDY PETERS,
DAVID L. ROACH, State Superintendent of Schools and
L. PAUL HARDESTY, President of the West Virginia Board of Education,
Respondents.
____________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Joanna I. Tabit, Judge
Civil Action Nos. 22-P-24 and 22-P-26
Intermediate Court of Appeals of West Virginia Nos. 22-ICA-1 and 22-ICA-3
REVERSED AND REMANDED WITH DIRECTIONS
____________________________________________________________
Submitted: October 4, 2022
Filed: November 17, 2022
Michael A. Kawash, Esq. Kelly C. Morgan, Esq.
Jonathon C. Stanley, Esq. Michael W. Taylor, Esq.
Robinson & McElwee PLLC Harrison M. Cyrus, Esq.
Charleston, West Virginia Bailey & Wyant, PLLC
Joshua A. House, Esq., Pro Hac Vice Charleston, West Virginia
Joseph Gay, Esq., Pro Hac Vice Counsel for Respondents,
Jeff Rowes, Esq., Pro Hac Vice David L. Roach and
Institute for Justice L. Paul Hardesty
Arlington, Virginia
Counsel for Petitioners,
Katie Switzer and Jennifer Compton
Patrick Morrisey, Esq. John H. Tinney, Jr., Esq.
Attorney General Hendrickson & Long, PLLC
Lindsay S. See, Esq. Charleston, West Virginia
Solicitor General Jessica Levin, Esq., Pro Hac Vice
Michael R. Williams, Esq. Wendy Lecker, Esq., Pro Hac Vice
Senior Deputy Solicitor General Education Law Center
Caleb A. Seckman, Esq. Newark, New Jersey
Assistant Solicitor General Tamerlin J. Godley, Esq., Pro Hac Vice
Charleston, West Virginia Timothy D. Reynolds, Esq., Pro Hac Vice
Counsel for Petitioner, Philip M. Hwang, Esq., Pro Hac Vice
State of West Virginia Kiaura Clark, Esq., Pro Hac Vice
Paul Hastings LLP
Joshua E. Weishart, Esq. Los Angeles, California
Morgantown, West Virginia Zoe Lo, Esq., Pro Hac Vice
Counsel for Amici Curiae, Benjamin S. Gilberg, Esq., Pro Hac Vice
Constitution and Paul Hastings LLP
Education Law Scholars New York, New York
Counsel for Respondents,
Mark A. Sadd, Esq. Travis Beaver and Wendy Peters
Lewis Glasser PLLC
Charleston, West Virginia Matthew R. Bowles, Esq.
Timothy Sandefur, Esq., Pro Hac Vice Sandra Henson Kinney, Esq.
Scharf-Norton Center for Constitutional Lewis Glasser PLLC
Litigation at the Goldwater Institute Charleston, West Virginia
Phoenix, Arizona Counsel for Amicus Curiae,
Counsel for Amicus Curiae, Mark E. Brennan, Bishop of the Diocese
Goldwater Institute of Wheeling-Charleston
Mark A. Sadd, Esq. Blaire Malkin, Esq.
Lewis Glasser PLLC Bren Pomponio, Esq.
Charleston, West Virginia Mountain State Justice, Inc.
Counsel for Amici Curiae, Charleston, West Virginia
Cardinal Institute for Lydia C. Milnes, Esq.
West Virginia Policy, Inc., and Mountain State Justice, Inc.
Catholic Education Partners Foundation Morgantown, West Virginia
Counsel for Amici Curiae,
The Arc Of West Virginia,
Astrive Advocacy, Inc.,
Mountain State Justice, Inc.,
West Virginia Center for
Budget and Policy, and
West Virginia Statewide Independent
Living Council
Zachary A. Viglianco, Esq. Michael J. Folio, Esq.
Gordon L. Mowen, II, Esq. Disability Rights of West Virginia
Ryan A. Nash, Esq. Charleston, West Virginia
Orndorff Mowen PLLC Selene Almazan-Altobelli, Esq.,
Scott Depot, West Virginia Pro Hac Vice
Alison M. Kilmartin, Esq. Council of Parent Attorneys and
Alliance Defending Freedom Advocates, Inc.,
Landsowne, Virginia Towson, Maryland
Counsel for Amicus Curiae, Counsel for Amici Curiae,
West Virginia Christian Council of Parent Attorneys
Education Association and Advocates,
Disability Rights of West Virginia, and
Leslie Davis Hiner, Esq., Pro Hac Vice National Disability Rights Network
EdChoice
Indianapolis, Indiana Lonnie C. Simmons, Esq.
David Powers, Esq., Pro Hac Vice DiPiero Simmons McGinley &
Powers Compliance, PLLC Bastress, PLLC
Washington, D.C. Charleston, West Virginia
Danielle Waltz, Esq. Counsel for Amici Curiae,
Jackson Kelly PLLC Pastors for Children,
Charleston, West Virginia National Education Association,
Counsel for Amici Curiae, West Virginia Education Association,
Edchoice, and American Federation of Teachers,
Foundation for Excellence in Education AFT-West Virginia,
Network for Public Education,
Elbert Lin, Esq. Southern Education Foundation,
Hunton Andrews Kurth LLP National Center for Youth Law, and
Richmond, Virginia Intercultural Development Research
Erica N. Peterson, Esq. Association
Hunton Andrews Kurth LLP
Washington, D.C.
Counsel for Amici Curiae,
yes. every kid. Foundation, and
Americans for Prosperity Foundation
JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE WOOTON concurs and reserves the right to file a concurring Opinion.
CHIEF JUSTICE HUTCHISON dissents and reserves the right to file a dissenting
Opinion.
SYLLABUS BY THE COURT
1. “The Constitution of West Virginia being a restriction of power rather
than a grant thereof, the legislature has the authority to enact any measure not inhibited
thereby.” Syl. Pt. 1, Foster v. Cooper, 155 W. Va. 619, 186 S.E.2d 837 (1972).
2. “This Court does not sit as a superlegislature, commissioned to pass
upon the political, social, economic or scientific merits of statutes pertaining to proper
subjects of legislation. It is the duty of the Legislature to consider facts, establish policy,
and embody that policy in legislation. It is the duty of this Court to enforce legislation
unless it runs afoul of the State or Federal Constitutions.” Syl. Pt. 2, Huffman v. Goals Coal
Co., 223 W. Va. 724, 679 S.E.2d 323 (2009).
3. “Unless an absolute right to injunctive relief is conferred by statute,
the power to grant or refuse or to modify, continue, or dissolve a temporary [preliminary]
or a permanent injunction, whether preventive or mandatory in character, ordinarily rests
in the sound discretion of the trial court, according to the facts and the circumstances of
the particular case; and its action in the exercise of its discretion will not be disturbed on
appeal in the absence of a clear showing of an abuse of such discretion.” Syl. Pt. 1, Baisden
v. W. Va. Secondary Schools Activities Comm’n., 211 W. Va. 725, 568 S.E.2d 32 (2002)
(internal citation omitted).
4. “This Court reviews the circuit court’s final order and ultimate
disposition under an abuse of discretion standard. We review challenges to findings of fact
i
under a clearly erroneous standard; conclusions of law are reviewed de novo.” Syl. Pt. 4,
Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996).
5. “In considering the constitutionality of a legislative enactment, courts
must exercise due restraint, in recognition of the principle of the separation of powers in
government among the judicial, legislative and executive branches. Every reasonable
construction must be resorted to by the courts in order to sustain constitutionality, and any
reasonable doubt must be resolved in favor of the constitutionality of the legislative
enactment in question. Courts are not concerned with questions relating to legislative
policy. The general powers of the legislature, within constitutional limits, are almost
plenary. In considering the constitutionality of an act of the legislature, the negation of
legislative power must appear beyond reasonable doubt.” Syl. Pt. 1, State ex rel.
Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965).
6. “There is a presumption of constitutionality with regard to
legislation.” Syl. Pt. 6, in part, Gibson v. W. Va. Dep’t of Hwys., 185 W. Va. 214, 406
S.E.2d 440 (1991).
7. A facial challenge to the constitutionality of a legislative enactment is
the most difficult challenge to mount successfully. The challenger must establish that no
set of circumstances exists under which the legislation would be valid; the fact that the
legislation might operate unconstitutionally under some conceivable set of circumstances
is insufficient to render it wholly invalid.
8. “Where a provision of a constitution is clear in its terms and of plain
interpretation to any ordinary and reasonable mind, it should be applied and not construed.”
ii
Syl. Pt. 1, Jarrett Printing Co. v. Riley, 188 W. Va. 393, 424 S.E.2d 738 (1992) (internal
citation omitted).
9. “Courts are not concerned with the wisdom or expediencies of
constitutional provisions, and the duty of the judiciary is merely to carry out the provisions
of the plain language stated in the constitution.” Syl. Pt. 2, Jarrett Printing Co. v. Riley,
188 W. Va. 393, 424 S.E.2d 738 (1992) (internal citation omitted).
10. “The Thorough and Efficient Clause contained in Article XII, Section
1 of the West Virginia Constitution requires the Legislature to develop a high quality State-
wide education system.” Syl. Pt. 5, Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979).
11. “Inasmuch as the Constitution of West Virginia is a restriction of
power rather than a grant of power, as is the federal Constitution, the Legislature may enact
any measure not interdicted by that organic law or the Constitution of the United States.”
Sy. Pt. 1, State ex rel. Metz v. Bailey, 152 W. Va. 53, 159 S.E.2d 673 (1968).
12. The Hope Scholarship Act, West Virginia Code § 18-31-1 to -13
(2021), does not facially violate the “free schools” clause contained in article XII, section
1 of the West Virginia Constitution.
13. “The mandatory requirements of ‘a thorough and efficient system of
free schools’ found in Article XII, Section 1 of the West Virginia Constitution, make
education a fundamental, constitutional right in this State.” Syl. Pt. 3, Pauley v. Kelly, 162
W. Va. 672, 255 S.E.2d 859 (1979).
14. “If the State takes some action which denies or infringes upon a
person’s fundamental right to an education, then strict scrutiny will apply and the State
iii
must prove that its action is necessary to serve some compelling State interest.
Furthermore, any denial or infringement of the fundamental right to an education for a
compelling State interest must be narrowly tailored.” Syl. Pt. 2, Cathe A. v. Doddridge
Cnty. Bd. of Educ., 200 W. Va. 521, 490 S.E.2d 340 (1997) (internal citation omitted).
15. “Because of public education’s constitutionally preferred status in this
State, expenditures for public education cannot be reduced . . . in the absence of a
compelling factual record to demonstrate the necessity therefor.” Syl. Pt. 2, in part, State
ex rel. Bd. of Educ. of Kanawha Cnty. v. Rockefeller, 167 W. Va. 72, 281 S.E.2d 131(1981).
16. “In due recognition of fundamental principles relating to the
separation of powers among the legislative, executive and judicial branches of government,
courts recognize the power of the legislature to make reasonable classifications for
legislative purposes. Courts are bound by a presumption that legislative classifications are
reasonable, proper and based on a sound exercise of the legislative prerogative. If a statute
enacted by the legislature applies throughout the state and to all persons, entities or things
within a class, and if such classification is not arbitrary or unreasonable, the statute must
be regarded as general rather than special. In making classifications for legislative
purposes, a wide range of discretion must be conceded by the courts to the legislature. In
any case of doubt, courts must favor a construction of a statute which will result in its being
regarded as general rather than special. A statute must be regarded as general rather than
special when it operates uniformly on all persons, entities or things of a class. A law which
operates uniformly upon all persons, entities or things as a class is a general law; while a
iv
law which operates differently as to particular persons, entities or things within a class is a
special law.” Syl. Pt. 7, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740,
143 S.E.2d 351 (1965).
v
ARMSTEAD, Justice:
The Circuit Court of Kanawha County granted a permanent injunction
enjoining the State from implementing the Hope Scholarship Act, West Virginia Code §
18-31-1 to -13 (2021), after finding that it was unconstitutional. Our Constitution says that
“[t]he Legislature shall provide, by general law, for a thorough and efficient system of free
schools.” W. Va. Const. art. XII, § 1. The circuit court ruled that this means that the
Legislature may only provide a thorough and efficient system of free schools. The word
“only” does not appear in article XII, section 1, and this Court has long held that “[t]he
Constitution of West Virginia being a restriction of power rather than a grant thereof, the
legislature has the authority to enact any measure not inhibited thereby.”1 Article XII,
section 1 does not contain language prohibiting the Legislature from enacting the Hope
Scholarship Act, in addition to its duty to provide for a thorough and efficient system of
free schools.
In declaring the Hope Scholarship Act to be unconstitutional, the circuit court
questioned the wisdom of the policy decisions the Legislature made in passing the Act.
We have often recognized that
[t]his Court does not sit as a superlegislature, commissioned to
pass upon the political, social, economic or scientific merits of
statutes pertaining to proper subjects of legislation. It is the
duty of the Legislature to consider facts, establish policy, and
embody that policy in legislation. It is the duty of this Court to
1
Syl. Pt. 1, Foster v. Cooper, 155 W. Va. 619, 186 S.E.2d 837 (1972) (Emphasis
added).
1
enforce legislation unless it runs afoul of the State or Federal
Constitutions.[ 2]
We emphasize that it is not the judiciary’s role to question the public policy
merits of the Hope Scholarship Act. Our policy preferences are not relevant. Our only
role in this matter is to assess the constitutionality of the Hope Scholarship Act. When
assessing the constitutionality of a legislative enactment, “courts must exercise due
restraint,” and “[e]very reasonable construction must be resorted to by the courts in order
to sustain constitutionality, and any reasonable doubt must be resolved in favor of the
constitutionality of the legislative enactment in question.” 3
Applying these standards, we find that the West Virginia Constitution does
not prohibit the Legislature from enacting the Hope Scholarship Act in addition to
providing for a thorough and efficient system of free schools. The Constitution allows the
Legislature to do both of these things. Therefore, we find that the circuit court abused its
discretion by permanently enjoining the State from implementing the Hope Scholarship
Act. We reverse the circuit court’s July 22, 2022, order and dissolve the permanent
2
Syl. Pt. 2, Huffman v. Goals Coal Co., 223 W. Va. 724, 679 S.E.2d 323 (2009)
(footnote added).
3
Syl. Pt. 1, in part, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740,
143 S.E.2d 351 (1965).
2
injunction it entered. This case is remanded to the circuit court with directions for it to
enter judgment in Petitioners’ favor. 4
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Hope Scholarship Act
This appeal concerns the Hope Scholarship Act (“Act”), West Virginia Code
§ 18-31-1 to -13, also known as House Bill 2013, which was enacted by the Legislature in
March of 2021. The Act created the Hope Scholarship Program “to provide the option for
a parent to better meet the individual education needs of his or her eligible child.” Id. § 18-
4
We express our appreciation for the contributions of the amici curiae who
submitted briefs in this matter: Mark E. Brennan, Bishop of the Diocese of Wheeling-
Charleston, by counsel Matthew R. Bowles and Sandra Henson Kinney, Lewis Glasser,
PLLC; Goldwater Institute, by counsel Mark A. Sadd, Lewis Glasser, PLLC; Cardinal
Institute for West Virginia Policy, Inc., and Catholic Education Partners Foundation, by
counsel Mark A. Sadd, Lewis Glasser, PLLC; EdChoice, Inc., and Foundation for
Excellence in Education, by counsel Leslie Davis Hiner, EdChoice, David Powers, Powers
Compliance, PLLC, and Danielle Waltz, Jackson Kelly PLLC; yes. every kid. Foundation
and Americans for Prosperity Foundation, by counsel Elbert Lin and Erica N. Peterson,
Hunton Andrews Kurth LLP; Council of Parent Attorneys and Advocates, Disability
Rights of West Virginia and National Disability Rights Network, by counsel Michael J.
Folio, Disability Rights of West Virginia, and Selene Almazan-Altobelli; the Arc of West
Virginia, Astrive Advocacy, Inc., Mountain State Justice, Inc., West Virginia Center for
Budget and Policy, and West Virginia Statewide Independent Living Council, by counsel
Blaire Malkin, Bren Pomponio, and Lydia C. Milnes, Mountain State Justice, Inc.; Pastors
for Children, the National Education Association, the West Virginia Education
Association, the American Federation of Teachers, AFT-West Virginia, the Network for
Public Education, the Southern Education Foundation, the National Center for Youth Law,
and the Intercultural Development Research Association, by counsel Lonnie C. Simmons,
DiPiero Simmons McGinley & Bastress, PLLC; Constitution and Education Law Scholars,
by counsel Joshua E. Weishart; and the West Virginia Christian Education Association, by
counsel Zachary A. Viglianco, Gordon L. Mowen, II, and Ryan A. Nash, Orndorff Mowen
PLLC, and Alison M. Kilmartin, Alliance Defending Freedom.
3
31-5(a). To accomplish this goal, the Act created education-savings accounts 5 that “may
only be used” for specific educational purposes. Id. § 18-31-7(b). The Act directs that
[p]arents of a Hope Scholarship student shall agree to use the
funds deposited in their student’s Hope Scholarship account
only for the following qualifying expenses to educate the
student:
(1) Ongoing services provided by a public school district
pursuant to § 18-31-8(f) of this code, including without
limitation, individual classes and extracurricular activities and
programs;
(2) Tuition and fees at a participating school;
(3) Tutoring services provided by an individual or a tutoring
facility: Provided, That such tutoring services are not provided
by a member of the Hope Scholarship student’s immediate
family;
(4) Fees for nationally standardized assessments, advanced
placement examinations, any examinations related to college
or university admission, and tuition and/or fees for preparatory
courses for the aforementioned exams;
(5) Tuition and fees for programs of study or the curriculum of
courses that lead to an industry-recognized credential that
satisfies a workforce need;
5
The amount of each individual Hope Scholarship equals “the prior year’s statewide
average net aid share allotted per pupil” in a public school, “based on net enrollment
adjusted for state aid purposes[.]” Id. § 18-31-6(b). If a student does not spend the entire
fiscal year in the program, the scholarship is prorated accordingly. Id. Further, “Hope
Scholarship funds may not be refunded, rebated, or shared with a parent or student in any
manner. Any refund or rebate for goods or services purchased with Hope Scholarship funds
shall be credited directly to a student’s Hope Scholarship account.” Id. § 18-31-7(c). Based
on the foregoing, each current Hope Scholarship recipient would receive approximately
$4,300 in their education-savings account.
4
(6) Tuition and fees for nonpublic online learning programs;
(7) Tuition and fees for alternative education programs;
(8) Fees for after-school or summer education programs;
(9) Educational services and therapies, including, but not
limited to, occupational, behavioral, physical, speech-
language, and audiology therapies;
(10) Curriculum as defined in § 18-31-2 of this code;
(11) Fees for transportation paid to a fee-for-service
transportation provider for the student to travel to and from an
education service provider; and
(12) Any other qualified expenses as approved by the board
established pursuant to § 18-31-3 of this code.
Id. § 18-31-7(a).
The Hope Scholarship is open to any child who resides in West Virginia and
“is enrolled full-time and attending a public elementary or secondary school program in
this state for at least 45 calendar days . . . or is eligible at the time of application to enroll
in a kindergarten.” Id. § 18-31-2(5). A parent applying for their child to participate in the
program must sign an agreement with the West Virginia Hope Scholarship Board 6
6
The West Virginia Hope Scholarship Board is made up of nine members and is
tasked with administering the Hope Scholarship Program. Id. § 18-31-3. The Board’s
responsibilities include ensuring that funds are only used for qualifying educational
expenses. Id. § 18-31-4(5). The Board is also responsible for verifying the participation
and academic progress of program recipients. Id. § 18-31-8(a)(3) and (4). Further, the
Board has continuing financial oversight and may remove a parent or eligible recipient
from the Hope Scholarship program and close a Hope Scholarship account “for failure to
(continued . . .)
5
stipulating that the parent will: 1) “provide an education for the eligible recipient in at least
the subjects of reading, language, mathematics, science, and social studies;” 2) “use the
Hope Scholarship funds exclusively for qualifying expenses;” 3) “comply with the rules
and requirements” of the program; and 4) “afford the [eligible recipient] opportunities for
educational enrichment such as organized athletics, art, music, or literature.” Id. § 18-31-
5(d)(3).
The Act addresses funding in West Virginia Code § 18-31-6. It provides:
There is hereby created in the State Treasury a special revenue
fund designated and known as the West Virginia Hope
Scholarship Program Fund. The fund shall be administered by
the Treasurer and shall consist of funds transferred by the
Department of Education in accordance with § 18-9A-25 of
this code.
Id. § 18-31-6(a).
According to West Virginia Code § 18-9A-25(a) (2021), the Department of
Education shall include a special request for the program in its annual budget request:
Notwithstanding any other provision of this article to the
contrary, for fiscal year 2023 and each fiscal year thereafter, in
addition to all other amounts required by this article, the
Department of Education shall include in its budget request,
and the Governor shall include in each budget bill submitted to
the Legislature, an appropriation to the Department of
Education for the greater of an amount not less than two
percent of net public school enrollment adjusted for state aid
purposes or the total number of eligible Hope Scholarship
comply with the terms of the parental agreement . . ., failure to comply with the applicable
laws, failure of the student to remain eligible, or intentional and fraudulent misuse of Hope
Scholarship funds.” Id. § 18-31-10(b).
6
applications received by the Hope Scholarship Board, if
available, multiplied by the prior year’s statewide average net
state aid allotted per pupil. The amount appropriated shall be
transferred by the Department of Education to the Hope
Scholarship Board to be used solely to meet the Hope
Scholarship Program obligations set forth in § 18-31-1 et seq.
of this code except as otherwise provided in this section.
Id., in relevant part. (Emphasis added).
We emphasize that the foregoing statute directs that the budget request for
the Hope Scholarship Program Fund is “in addition to all other amounts required by this
article.” Id. The referred-to article, article 9A of chapter 18, addresses public education
financing. Thus, per the plain language of the statute, the Hope Scholarship’s funding is
“in addition to all other amounts required” to fund public education. Id. § 18-9A-25(a).
B. Procedural History
Respondents, Travis Beaver and Wendy Peters (“Respondents”), 7 filed their
complaint in the Circuit Court of Kanawha County on January 19, 2022. They argued that
the Act was unconstitutional and sought injunctive and declaratory relief. 8 In response,
Petitioners, Katie Switzer and Jennifer Compton (“Petitioners”), moved to intervene and
7
Respondent Travis Beaver is a resident of Putnam County, West Virginia, and has
two children in public school. Respondent Wendy Peters is a resident of Raleigh County,
West Virginia. She is a teacher in a public school and has a child that attends public school.
8
Respondents named the State Treasurer, State Superintendent of Schools,
President of the Board of Education, President of the Senate, Speaker of the House, and
Governor as defendants.
7
argued that the Act was constitutional. Petitioners asserted that they were both relying on
Hope Scholarship funds to educate their children.
The parties filed a number of motions which the circuit court considered
during a July 6, 2022, hearing. These included: 1) Respondents’ motion for a preliminary
injunction; 9 2) motions to dismiss filed by four defendants (the State Treasurer, President
of the Senate, Speaker of the House, and Governor); 3) Petitioners’ motion for judgment
on the pleadings; and 4) the State of West Virginia’s (“State”) motion to intervene.
One of the main issues addressed at the hearing was the Hope Scholarship’s
funding sources and mechanism. Respondents asserted that the Act would decrease
enrollment in public schools by incentivizing students “to either not enter public education
or to actually leave public education.” Because the “majority of the factors” that comprise
the State’s public education funding formula (“school funding formula”) 10 are based on
public school enrollment, Respondents alleged that a decrease in enrollment would result
in a decrease in public school funding.
9
Though named as defendants, the State Superintendent of Schools and the
President of the Board of Education filed a motion in support of Respondents’ motion for
a preliminary injunction, arguing that the Act was unconstitutional.
10
In their brief to this Court, the State Superintendent and President of the Board of
Education note that public education is financed “primarily by the West Virginia Public
School Support Plan, which is codified in West Virginia Code § 18-9A-1, et seq. . . [and
that] a significant majority of the funding formula is attributable directly or indirectly to
enrollment figures from the prior year.”
8
By contrast, the State and Petitioners argued that the Act was funded through
the “general fund,” and did not take any funding intended for public education. They
asserted that the Legislature is required to provide for a “thorough and efficient system of
free schools,” under article XII, section 1 of the West Virginia Constitution, but once it
accomplishes that goal, it is not prohibited from enacting additional educational initiatives,
like the Hope Scholarship Program.
The July 6 hearing transcript reveals that the circuit court questioned where
the Legislature would get the money to fund the Act and questioned why that money was
not being spent on public education. The circuit court stated, “I am troubled that there
seems to be no educational standards or accountability to the public provided by the Hope
Scholarship Fund. Funds, in my view, are diverted from a historically underfunded public
school system in West Virginia and that is problematic.” The circuit court asked
Petitioners’ counsel: “Where are you going to get $100 million a year to do this?”11
Counsel replied that the funding was coming from the “general fund,” and not from the
public school fund. The circuit court and Petitioners’ counsel had the following exchange:
Circuit Court: I can multiply 3,300 [potential number
of program participants] by $4,300, and see what monies will
be diverted from public education, monies that could have
potentially gone to public education that are going to be
diverted.
11
Respondents asserted that the program could cost up to $120 million dollars a
year. The State noted that in the current year, “3000 students have apparently applied for
the program at $4,300 a year. That’s $12.9 million, Your Honor. That’s not $100 million.”
9
Counsel: Again, that’s any money in the state [that]
could go to public education. The money spent on the road
could go to public education. It is not unconstitutional to take
money from the general fund and spend it on other legislature
priorities.
Circuit Court: But it’s money that would’ve been spent
for education.
Counsel: No, it’s not. It’s general fund money. It
could’ve gone anywhere. It could have gone to the libraries.
Could have gone to roads. It could have gone to healthcare. It
could have gone to any other issues that West Virginia wants
to spend money on.
Circuit Court: And they [the Legislature] want to spend
money on this scholarship fund?
Counsel: That appears to be.
While Respondents’ motion only sought a preliminary injunction, the circuit
court concluded the hearing by announcing that it was “preliminarily and permanently
enjoining” the State from implementing the Act based on its finding that the Act was
unconstitutional. 12 In its subsequent July 22, 2022, order, the circuit court set forth five
main reasons for its finding that the Act was unconstitutional. First, it determined that “the
Constitution require[s] the State to raise revenue for, fund, and maintain only a thorough
and efficient system of free schools supervised by” the West Virginia Board of Education.
12
The circuit court also granted the State’s motion to intervene and dismissed all
defendants except the Superintendent of Schools and the President of the Board of
Education. After the court announced its ruling, the State moved for a thirty-day stay. The
court denied the State’s motion.
10
(Emphasis added). The circuit court found that the Act exceeds the Constitution by
“authorizing a separate system of education, governed by a separate board, funded by West
Virginia taxpayer money.”
Second, the circuit court ruled that the Act “impinges on West Virginia
children’s fundamental right to an education without meeting strict scrutiny.” It found that
the Act impinged on a child’s fundamental right to an education by “reducing the funds
available to public schools through the state-incentivized reduction in public school
enrollment. [The Act] also trades a student’s fundamental right to a public education for a
sum of money.”
Third, the circuit court ruled the Act was unconstitutional because it directed
public funds to be spent on non-public education. According to the circuit court, the
Constitution “makes clear that public funds for K-12 education are for the free schools and
no other purpose whatsoever.” Fourth, the circuit court found that the Act “improperly
usurps the constitutional authority” of the West Virginia Board of Education. Finally, the
circuit court determined that the Act is an unconstitutional special law.
Petitioners and the State filed motions to stay the circuit court’s order with
the Intermediate Court of Appeals of West Virginia (“Intermediate Court”). After the
Intermediate Court denied the motions to stay, Petitioners and the State sought a stay from
this Court. While this Court denied the motions to stay, we entered an order on August 18,
2022, 1) obtaining jurisdiction from the Intermediate Court under West Virginia Code §
11
51-11-4(b)(1) and Rule 1 of the Rules of Appellate Procedure, and 2) expediting briefing
and consideration.
II. STANDARD OF REVIEW
This Court has held that
[u]nless an absolute right to injunctive relief is conferred by
statute, the power to grant or refuse or to modify, continue, or
dissolve a temporary [preliminary] or a permanent injunction,
whether preventive or mandatory in character, ordinarily rests
in the sound discretion of the trial court, according to the facts
and the circumstances of the particular case; and its action in
the exercise of its discretion will not be disturbed on appeal in
the absence of a clear showing of an abuse of such discretion.
Syl. Pt. 1, Baisden v. W. Va. Secondary Schools Activities Comm’n., 211 W. Va. 725, 568
S.E.2d 32 (2002) (cleaned up).
Further, “[t]his Court reviews the circuit court’s final order and ultimate
disposition under an abuse of discretion standard. We review challenges to findings of fact
under a clearly erroneous standard; conclusions of law are reviewed de novo.” Syl. Pt. 4,
Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996). With these standards as
guidance, we consider the parties’ arguments.
III. ANALYSIS
In this appeal, we address five main constitutional arguments raised by the
parties: 1) whether the “free schools” clause contained in article XII, section 1 of the West
Virginia Constitution only permits the Legislature to fund free schools; 2) whether the Act
impinges on a child’s fundamental right to an education without meeting strict scrutiny; 3)
whether the Act improperly directs public funds to be spent on non-public education; 4)
12
whether the Act usurps the West Virginia Board of Education’s authority; and 5) whether
the Act is a “special law.” 13 We address each of these in turn. 14
13
The State and Petitioners, Ms. Switzer and Ms. Compton, argue that the Act is
constitutional and that this Court should dissolve the permanent injunction. Respondents,
Mr. Beaver, Ms. Peters, the Superintendent of Schools, and the President of the Board of
Education, urge this Court to affirm the circuit court’s finding that the Act is
unconstitutional. Additionally, multiple amicus briefs, both for and against the circuit
court’s ruling, have been filed. For ease of the reader, we attribute all arguments urging
reversal of the circuit court’s ruling to “Petitioners.” Arguments in favor of affirming the
circuit court’s ruling are attributed to “Respondents.”
14
The State also argues that the circuit court should have dismissed the case for lack
of jurisdiction on standing and ripeness grounds. Petitioners, Ms. Switzer and Ms.
Compton, do not contest jurisdiction. Under the specific facts of this case, we do not find
that the circuit court lacked jurisdiction. A number of courts in other jurisdictions
addressing alleged violations of educational rights under a state constitution have found
that plaintiffs had standing to challenge such laws. In Meredith v. Pence, 984 N.E.2d 1213(Ind. 2013), the Indiana Supreme Court determined that taxpayers challenging the
constitutionality of the State’s statutory school voucher program had standing. The court
explained: “As taxpayers challenging allegedly unconstitutional use of public funds, the
plaintiffs have standing under Indiana’s public standing doctrine, an exception to the
general requirement that a plaintiff must have an interest in the outcome of the litigation
different from that of the general public.” 984 N.E.2d at 1217 n.4 (internal citation
omitted). Similarly, the Nevada Supreme Court ruled that plaintiffs had standing to assert
a challenge to an educational spending account program under their state constitution
where 1) the issue was of “significant public importance,” and 2) plaintiffs contended that
a legislative expenditure violated a specific provision of the state constitution. Schwartz v.
Lopez, 382 P.3d 886, 894-95 (Nev. 2016). See also Hoke Cty. Bd. of Educ. v. State, 599
S.E.2d 365, 376-77 (N.C. 2004) (“In declaratory actions involving issues of significant
public interest, such as those addressing alleged violations of education rights under a state
constitution, courts have often broadened both standing and evidentiary parameters to the
extent that plaintiffs are permitted to proceed so long as the interest sought to be protected
by the complainant is arguably within the ‘zone of interest’ to be protected by the
constitutional guaranty in question.”). While this Court has not addressed the public
standing doctrine at length, we have observed that “[i]n West Virginia the . . . doctrine of
standing is not usually employed to avoid a frontal confrontation with an issue of legitimate
(continued . . .)
13
A. The “Free Schools” Clause
Respondents’ argument that the Act is unconstitutional rests largely on its
contention that the “free schools” clause, contained in article XII, section 1 of the West
Virginia Constitution, only permits the Legislature to maintain a thorough and efficient
system of free schools. Our review of this issue will include 1) an examination of this
Court’s role when considering a constitutional challenge to a legislative enactment; 2) the
parties’ arguments; and 3) our conclusion that the Act does not facially violate the West
Virginia Constitution.
This Court has held that
[i]n considering the constitutionality of a legislative enactment,
courts must exercise due restraint, in recognition of the
principle of the separation of powers in government among the
judicial, legislative and executive branches. Every reasonable
construction must be resorted to by the courts in order to
sustain constitutionality, and any reasonable doubt must be
resolved in favor of the constitutionality of the legislative
enactment in question. Courts are not concerned with questions
relating to legislative policy. The general powers of the
legislature, within constitutional limits, are almost plenary. In
considering the constitutionality of an act of the legislature, the
negation of legislative power must appear beyond reasonable
doubt.
Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351(1965).
public concern.” State ex rel. Alsop v. McCartney, 159 W. Va. 829, 838, 228 S.E.2d 278,
283 (1976). Based on all of the foregoing, we conclude that, under the specific facts of
this case, the circuit court did not lack jurisdiction.
14
Rather than limiting their arguments to the constitutionality of the Act,
Respondents have questioned the wisdom of the policy decisions the Legislature made in
passing the Act, particularly focusing on the Act’s fiscal soundness. We find that the focus
on the policy decisions the Legislature made in passing the Act is irrelevant to our
consideration of whether the Act is constitutional. We have held that
[t]his Court does not sit as a superlegislature, commissioned to
pass upon the political, social, economic or scientific merits of
statutes pertaining to proper subjects of legislation. It is the
duty of the Legislature to consider facts, establish policy, and
embody that policy in legislation. It is the duty of this Court to
enforce legislation unless it runs afoul of the State or Federal
Constitutions.
Syl. Pt. 2, Huffman, 223 W. Va. 724, 679 S.E.2d 323. Moreover, this Court has recognized
that “the power of the purse lies solely with the Legislature.” Fountain Place Cinema 8,
LLC v. Morris, 227 W. Va. 249, 254, 707 S.E.2d 859, 864 (2011). Thus, the issue in this
matter is the constitutionality of the Act; it is not to second-guess the policy decisions the
Legislature made in passing the Act.
Respondents have asserted a facial constitutional challenge to the Act. It is
well-settled that “[t]here is a presumption of constitutionality with regard to legislation.”
Syl. Pt. 6, in part, Gibson v. W. Va. Dep’t of Hwys., 185 W. Va. 214, 406 S.E.2d 440 (1991).
Thus, as we have previously observed, and as we now hold, a facial challenge to the
constitutionality of a legislative enactment is “the most difficult challenge to mount
successfully. The challenger must establish that no set of circumstances exists under which
the legislation would be valid; the fact that the legislation might operate unconstitutionally
15
under some conceivable set of circumstances is insufficient to render it wholly invalid.”
Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 691, 408 S.E.2d 634, 641 (1991).
Our specific task in this matter is to examine the “free schools” clause. “[I]n
every case involving the application or interpretation of a constitutional provision, analysis
must begin with the language of the constitutional provision itself.” State ex rel.
Mountaineer Park, Inc. v. Polan, 190 W. Va. 276, 283, 438 S.E.2d 308, 315 (1993). When
reviewing a constitutional provision, we adhere to the following:
Where a provision of a constitution is clear in its terms
and of plain interpretation to any ordinary and reasonable
mind, it should be applied and not construed.
Courts are not concerned with the wisdom or
expediencies of constitutional provisions, and the duty of the
judiciary is merely to carry out the provisions of the plain
language stated in the constitution.
Syl. Pts. 1 and 2, Jarrett Printing Co. v. Riley, 188 W. Va. 393, 424 S.E.2d 738 (1992)
(internal citations omitted).
The “free schools” clause provides: “The Legislature shall provide, by
general law, for a thorough and efficient system of free schools.” W. Va. Const. art. XII, §
1. Petitioners assert that the plain language of this clause does not restrict the Legislature
from enacting educational initiatives, like the Hope Scholarship Program, in addition to its
duty to provide for a thorough and efficient system of free schools. Respondents argue that
this clause requires the State to fund, and maintain only a thorough and efficient system of
free schools. While the word “only” does not appear in the “free schools” clause, the circuit
court arrived at its conclusion by applying a statutory interpretation maxim, expressio unius
16
est exclusio alterius (“expressio unius”), which means “the expression of one thing, being
the exclusion of the other.” See Syl. Pt. 3, Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d
710 (1984). Further, Respondents assert that construing the “free schools” clause in pari
materia 15 with sections 2, 4, and 5 of article XII, supports their conclusion that the
Legislature may only fund and maintain a thorough and efficient system of free schools.
We agree with Petitioners and find that their argument in favor of the Act’s
constitutionality is consistent with the plain language of the “free schools” clause and with
our vast body of caselaw recognizing that “[t]he general powers of the legislature, within
constitutional limits, are almost plenary. In considering the constitutionality of an act of
the legislature, the negation of legislative power must appear beyond reasonable doubt.”
Syl. Pt. 1, in part, Gainer, 149 W. Va. 740, 143 S.E.2d 351.
Our first step when reviewing a constitutional provision is to determine
whether the language is clear and plain and may be applied as written. In making this
determination, we have held that “[i]f the text, given its plain meaning, answers the
interpretive question, the language must prevail and further inquiry is foreclosed.”
Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 587, 466 S.E.2d
424, 438 (1995). “However, if the language of the constitutional provision is ambiguous,
then the ordinary principles employed in statutory construction must be applied to ascertain
15
See Syl. Pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va.
14, 217 S.E.2d 907 (1975).
17
such intent.” Randolph Cnty. Bd. of Educ. v. Adams, 196 W. Va. 9, 16 n. 8, 15, 467 S.E.2d
150, 157 n.8 (1995).
We find that the language of the “free schools” clause is clear and its meaning
is plain—the Legislature must provide a thorough and efficient system of free schools. As
this Court held in syllabus point five of Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859(1979): “The Thorough and Efficient Clause contained in Article XII, Section 1 of the West
Virginia Constitution requires the Legislature to develop a high quality State-wide
education system.” 16 (Emphasis added). While the “free schools” clause requires the
Legislature to provide a through and efficient system of free schools, it does not contain
any restrictive language prohibiting the Legislature from enacting additional educational
initiatives. The lack of any restrictive language is crucial because, as we discuss below,
the Legislature has the authority to enact any law unless expressly forbidden to do so by
our Constitution.
We have held that “[t]he Constitution of West Virginia being a restriction of
power rather than a grant thereof, the legislature has the authority to enact any measure not
inhibited thereby.” Syl. Pt. 1, Foster v. Cooper, 155 W. Va. 619, 186 S.E.2d 837. As this
Court explained in syllabus point one of State ex rel. Metz v. Bailey, 152 W. Va. 53, 159
16
The Court also defined a “thorough and efficient system of schools” in Pauley,
stating: “We may now define a thorough and efficient system of schools: It develops, as
best the state of education expertise allows, the minds, bodies and social morality of its
charges to prepare them for useful and happy occupations, recreation and citizenship, and
does so economically.” 162 W. Va. at 705, 255 S.E.2d at 877.
18
S.E.2d 673 (1968): “Inasmuch as the Constitution of West Virginia is a restriction of power
rather than a grant of power, as is the federal Constitution, the Legislature may enact any
measure not interdicted by that organic law or the Constitution of the United States.”
(Emphasis added). Further, this Court has observed that “the general powers of the
Legislature are almost plenary and . . . it can legislate on every subject not interdicted by
the Constitution itself.” Robertson v. Hatcher, 148 W. Va. 239, 251, 135 S.E.2d 675, 683
(1964) (internal citation omitted).
This Court has previously addressed the lack of restrictive language in the
“free schools” clause. In Herold v. McQueen, 71 W. Va. 43, 75 S.E. 313 (1912), the Court
considered a challenge by county taxpayers who argued that the Legislature violated the
“free schools” clause by establishing a new high school in Nicholas County and taxing the
county residents for the creation of that school. Id. at 43, 75 S.E. at 314. The Court rejected
this challenge and, after examining the “free schools” clause, explained:
The Legislature has, by general law, provided a system of free
schools throughout the state. But it will be noted that it is not
prohibited from augmenting, and making more efficient, the
general system of free schools, by the establishment of special
high schools and graded schools in any locality where it may
think it wise to do so.
Id. at 43, 75 S.E. at 315-16 (emphasis added).
This Court also examined the “free schools” clause in Leonhart v. Board of
Education of Charleston Independent School District, 114 W. Va. 9, 170 S.E. 418 (1933).
In Leonhart, the Court upheld the constitutionality of the Legislature’s abolition of
independent school districts and its creation of county school boards. The Court noted the
19
broad powers the Legislature enjoys and found that the “free schools” clause does not
restrict the Legislature’s ability to make changes to our education system:
The general powers of the Legislature are almost plenary, as it
can legislate on every subject not foreclosed by the
Constitution itself. The test of legislative power is
constitutional restriction. What the people have not said in the
organic law their representatives shall not do, they may do.
In view of the broad powers enjoyed by the Legislature
in the absence of constitutional restrictions, as well as the
specific provision of section 1 of the article on education, that
body has the right to make change[s] in the educational system
as it may see fit, subject, of course, to constitutional limitations.
Id. at 9, 170 S.E. at 420 (internal citation omitted) (emphasis added).
Based on the foregoing, we find that the “free schools” clause operates as a
floor, not a ceiling. That is, it contains a requirement of what the Legislature must do; it
does not prohibit the Legislature from enacting additional educational initiatives, such as
the Hope Scholarship Program. 17
17
This conclusion—that our “free schools” clause operates as a floor, not a ceiling—
is consistent with courts from outside of our jurisdiction that have examined educational
provisions in their state constitutions. See Hart v. State, 774 S.E.2d 281, 289-90 (N.C.
2015) (“[T]he uniformity clause requires that provision be made for public schools of like
kind throughout the state. . . . The uniformity clause applies exclusively to the public school
system and does not prohibit the General Assembly from funding educational initiatives
outside of that system.”); Jackson v. Benson, 578 N.W.2d 602, 628 (Wis. 1998)
(concluding that a constitutional provision requiring the legislature to provide a uniform,
free school system was “not a ceiling but a floor upon which the legislature can build
additional opportunities for school children in Wisconsin[.]” (internal citation omitted));
Schwartz v. Lopez, 382 P.3d at 898 (“[A]s long as the Legislature maintains a uniform
public school system, open and available to all students, the constitutional mandate . . . is
satisfied, and the Legislature may encourage other suitable educational measures[.]”).
20
Based on this conclusion, we find Respondents’ reliance on expressio unius
to be misplaced. Expressio unius is generally used as a statutory construction tool when
interpreting an ambiguous statute. In Young v. Apogee Coal Co., LLC, 232 W. Va. 554,
562, 753 S.E.2d 52, 60 (2013), this Court noted that “[t]he expressio unius maxim is
premised upon an assumption that certain omissions from a statute by the Legislature are
intentional.” As both this Court and the United State Supreme Court have recognized,
expressio unius only applies in limited circumstances. 18 The Supreme Court set forth these
limited circumstances in Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S.Ct. 2045(2002):
The canon depends on identifying a series of two or more terms
or things that should be understood to go hand in hand, which
is abridged in circumstances supporting a sensible inference
that the term left out must have been meant to be excluded. . .
. [E]xpressio unius properly applies only when in the natural
association of ideas in the mind of the reader that which is
expressed is so set over by way of strong contrast to that which
is omitted that the contrast enforces the affirmative inference.
536 U.S. at 81, 122 S.Ct. at 2050 (internal citation omitted).
Additionally, a number of courts from outside of our jurisdiction have
determined that expressio unius should be applied sparingly when construing a state
18
In a concurring opinion in State v. Euman, 210 W. Va. 519, 558 S.E.2d 319(2001), it was noted that “expressio unius is not a rule of law, but merely an aid to
construing an otherwise ambiguous statute. . . . And even in this limited capacity courts
have frequently admonished that the maxim is to be applied with great caution and is
recognized as unreliable.” Id. at 524, 558 S.E.2d at 324 (McGraw, .J., concurring) (internal
citation omitted).
21
constitutional provision. See State ex rel. Jackman v. Court of Common Pleas of Cuyahoga
Cnty., 224 N.E.2d 906, 910 (Ohio 1967) (“[T]he maxim, expressio unius est exclusio
alterius, should be applied with caution to provisions of constitutions relating to the
legislative branch of the government, since it cannot be made to restrict the plenary power
of the legislature.” (internal citation omitted)); Gangemi v. Berry, 134 A.2d 1, 11 (N.J.
1957) (“[Expressio Unius] is not to be applied with the same rigor in construing a state
constitution as a statute; only those things expressed in such positive affirmative terms as
plainly imply the negative of what is not mentioned will be considered as inhibiting the
powers of the legislature.” (internal citation omitted)); Dean v. Kuchel, 230 P.2d 811, 813
(Cal. 1951) (“[T]he express enumeration of legislative powers is not an exclusion of others
not named unless accompanied by negative terms.”).
The “free schools” clause does not contain any negative or restrictive
language, nor does it contain “a series of two or more terms or things that should be
understood to go hand in hand.” Chevron, 536 U.S. at 81, 122 S.Ct. at 2050. Thus,
consistent with the foregoing authorities, we reject Respondents’ argument and find that
the circuit court abused its discretion by applying expressio unius to conclude that the “free
schools” clause “only” permits the Legislature to provide a thorough and efficient system
of free schools. 19
19
Respondents’ argument that the word “only” should be inserted into article XII,
section 1, would drastically alter its plain meaning and is contrary to our direction to apply
(continued . . .)
22
We also reject Respondents’ argument that the Act is unconstitutional when
construing the “free schools” clause in pari materia with sections 2, 4, and 5 of article XII.
The circuit court’s order cites the following language from these sections that Respondents
relied on:
Article XII, Section 2 states that “general supervision of the
free schools of the State shall be vested in the West Virginia
board of education[.]” Article XII, Section 4 states that public
monies existing in the “school fund . . . shall be annually
applied to the support of free schools throughout the state, and
to no other purpose whatever.” . . . Article XII, Section 5 states
that the “Legislature shall provide for the support of free
schools . . . by general taxation” and other public monies [and]
. . . that “[t]he power of taxation of the Legislature shall extend
to . . . the support of free schools[.]”
We find no support for Respondents’ position that construing these sections
with the “free schools” clause requires the State to fund, and maintain only a thorough and
efficient system of free schools. “[T]he legislature has the authority to enact any measure
not inhibited [by the West Virginia Constitution].” Syl. Pt. 1, in part, Foster, 155 W. Va.
619, 186 S.E.2d 837. Sections 2, 4, and 5 of article XII do not contain any language
the Constitution as written: “Although this Court is vested with the authority to construe,
interpret and apply provisions of the Constitution, . . . [we] may not add to, distort or ignore
the plain mandates thereof. Thus, if a constitutional provision is clear in its terms, . . . this
Court must apply and not interpret the provision.” State ex rel. Morrisey v. W. Va. Office
of Disc. Counsel, 234 W. Va. 238, 255, 764 S.E.2d 769, 786 (2014) (internal citation
omitted).
23
prohibiting the Legislature from enacting educational initiatives in addition to its duty to
provide for a thorough and efficient system of free schools. 20
Based on the foregoing, we reject Respondents’ argument and conclude that
the circuit court abused its discretion by ruling that the Act is unconstitutional when
construing the “free schools” clause in pari materia with sections 2, 4, and 5 of article XII.
Having considered and rejected the grounds upon which the circuit court
found that the Act violates the “free schools” clause, we now hold that the Act, West
Virginia Code § 18-31-1 to -13, does not facially violate the “free schools” clause contained
in article XII, section 1 of the West Virginia Constitution.
B. Fundamental Right to an Education/Strict Scrutiny
20
In addition, Article XII, section 12 provides: “The Legislature shall foster and
encourage, moral, intellectual, scientific and agricultural improvement; it shall, whenever
it may be practicable, make suitable provision for the blind, mute and insane, and for the
organization of such institutions of learning as the best interests of general education in the
state may demand.” Other jurisdictions have interpreted similar constitutional provisions
to support holdings that their legislatures had the ability to fund non-public educational
initiatives. See Meredith v. Pence, 984 N.E.2d at 1222 (“[T]he General Assembly’s duty
‘to encourage, by all suitable means, moral, intellectual, scientific, and agricultural
improvement’ is to be carried out in addition to provision for the common school system.”
(emphasis in original)); Schwartz v. Lopez, 382 P.3d at 898 (“[T]he Nevada Constitution
contains two distinct duties set forth in two separate sections of Article 11—one to
encourage education through all suitable means (Section 1) and the other to provide for a
uniform system of common schools (Section 2). We conclude that as long as the
Legislature maintains a uniform public school system, open and available to all students,
the constitutional mandate of Section 2 is satisfied, and the Legislature may encourage
other suitable educational measures under Section 1.”).
24
Next, Respondents contend that the Act “impinges on West Virginia
children’s fundamental right to an education without meeting strict scrutiny.” They argue
that the Act impinges on a child’s fundamental right to an education by 1) trading a
student’s fundamental right to a public education for a sum of money, and 2) reducing the
funds available to public schools by reducing public school enrollment. The circuit court
agreed with Respondents’ argument and found that “[t]he State must demonstrate that such
actions meet a compelling state interest and are narrowly tailored to achieve that
compelling interest. . . . [The Act] does not meet either prong of the strict scrutiny analysis.”
Petitioners contend that strict scrutiny does not apply because the Act does not impinge on
a child’s fundamental right to an education in either manner suggested by Respondents.
We agree with Petitioners and find that our strict scrutiny test does not apply
because the Act does not impinge on a child’s fundamental right to an education. After a
brief background discussion, we will address the circuit court’s ruling.
This Court has found that education is a fundamental right: “The mandatory
requirements of ‘a thorough and efficient system of free schools’ found in Article XII,
Section 1 of the West Virginia Constitution, make education a fundamental, constitutional
right in this State.” Syl. Pt. 3, Pauley, 162 W. Va. 672, 255 S.E.2d 859. In addition, this
Court has held that
[i]f the State takes some action which denies or infringes upon
a person’s fundamental right to an education, then strict
scrutiny will apply and the State must prove that its action is
necessary to serve some compelling State interest.
Furthermore, any denial or infringement of the fundamental
25
right to an education for a compelling State interest must be
narrowly tailored.
Syl. Pt. 2, Cathe A. v. Doddridge County Bd. of Educ., 200 W. Va. 521, 490 S.E.2d 340(1997) (internal citation omitted). With this background in mind, we address the two areas
in which the circuit court found that the Act impinges on a child’s fundamental right to an
education.
1. Right to Education Traded For a “Sum of Money”
The circuit court, relying on West Virginia Code § 18-31-8(f), noted that “[i]f
a student who receives [the Hope Scholarship] wants to take classes at a public school or
use any other public school resources, the student has to pay for these services.” 21 Based
21
West Virginia Code § 18-31-8(f) provides:
The [Hope Scholarship] board, in consultation with the
Department of Education, may adopt rules and policies for
Hope Scholarship students who want to continue to receive
services provided by a public school or district, including
individual classes and extracurricular programs, in
combination with an individualized instructional program. The
board, in consultation with the Department of Education, shall
ensure that any public school or school district providing such
services receives the appropriate pro rata share of a student’s
Hope Scholarship funds based on the percentage of total
instruction provided to the student by the public school or
school district. County boards shall charge tuition to Hope
Scholarship students who enroll for services in a public school
within the county. Hope Scholarship students who enroll for
services part-time in public school shall not be included in net
enrollment for state aid funding purposes under § 18-9A-2 of
this code. Nothing in this subsection prohibits a Hope
(continued . . .)
26
on this finding, the circuit court agreed with Respondents’ argument and ruled that the Act
“trades a student’s fundamental right to a public education for a sum of money. Students
will not be protected from for-profit entities or parents that do not use these funds for
providing an adequate education.” We disagree.
The Hope Scholarship Program is entirely voluntary. No family is forced to
participate and each student-recipient may leave the program and enroll in public school at
any time. Pursuant to article XII, section 1 of the West Virginia Constitution, the
Legislature must provide for a thorough and efficient system of free schools. Thus, public
education is free to all West Virginia children. The Act does not change that, and it does
not require any family or student to leave public school and take part in the program.
Therefore, we find that this voluntary program does not require a student to trade away
their public education for a “sum of money.”
Similarly, there is no basis for the circuit court’s finding that “[s]tudents will
not be protected from for-profit entities or parents that do not use these funds for providing
an adequate education.” This conclusion is at odds with the plain language of the Act
which provides that Hope Scholarship funds are placed into state-controlled and state-
audited savings accounts that “may only be used” for specific educational purposes. Id. §
Scholarship student from using the funds deposited in his or
her account on both services provided by a public school or
district and other qualifying expenses as provided for in § 18-
31-7 of this code.
27
18-31-7(b). As noted by Petitioners, parents do not receive the money to use as they
choose: “Hope Scholarship funds may only be used for educational purposes . . . [and] may
not be . . . shared with a parent or student in any manner.” Id. § 18-31-7(b)-(c). Further,
the Act provides that the Hope Scholarship Board has the authority to audit and ban any
education service provider who has misused Hope Scholarship funds. Id. § 18-31-10(c)-
(d). Thus, we find that the circuit court’s speculative conclusion that “[s]tudents will not
be protected from for-profit entities or parents that do not use these funds for providing an
adequate education,” is inconsistent with the plain language of the Act.
Based on the foregoing, we find that the circuit court abused its discretion by
ruling that the Act impinges on a child’s fundamental right to an education by trading “a
student’s fundamental right to a public education for a sum of money.” Because we find
that the Act does not impinge on a child’s fundamental right to an education in this manner,
we conclude that our strict scrutiny test does not apply to this issue.
2. Reducing Funds Available to Public Schools
Next, the circuit court ruled that the Act impinges on a child’s fundamental
right to an education by “reducing the funds available to public schools through the state-
incentivized reduction in public school enrollment.” It arrived at this conclusion based on
the following factual findings:
Because state funding for public education is based in large
part on student enrollment, [the Hope Scholarship Program]
will result in a reduction in public school funding. . . . This
reduction in funding will occur without a reduction in fixed
costs—libraries, administration, maintenance, and numerous
other expenses that do not decrease with each individual
28
student who takes a voucher. . . . Variable costs, including the
amount necessary to pay teachers’ salaries, will also not
decrease at a pace commensurate with the departure of
students.
Petitioners assert that the Act does not reduce funds available to public
schools. Rather, the Act is funded from a new, general revenue appropriation that is “in
addition to all other amounts required by [Article 9A of Chapter 18 of the West Virginia
Code],” that is, funding separate from and in addition to the school funding formula. W.
Va. Code § 18-9A-25(a). Petitioners argue that the circuit court’s analysis relies entirely
on the fact that the school funding formula partially depends on public school enrollment,
which the circuit court found will decline because the Hope Scholarship incentivizes
students to leave public schools. However, even assuming some drop in enrollment,
Petitioners argue that Respondents failed to demonstrate, and the circuit court failed to
address, whether the Act will reduce public school funding “not just by some amount, but
by an amount large enough to cross the [article XII, section 1] constitutional line.”
Petitioners claim that under the circuit court’s ruling, any decrease in public school
funding, no matter how minimal, would infringe on the right to a thorough and efficient
system of free schools. Finally, Petitioners note that even if public school enrollment
decreases, whether public school funding will actually decline depends on an independent
decision of the Legislature that is not controlled in any fashion by the Act.
We agree with Petitioners and find that the circuit court’s ruling was
erroneous for two main reasons: 1) the Act does not contain any language that mandates a
reduction in public school funding; and 2) even assuming the Act did eventually, in future
29
school years, result in decreased public school enrollment, the circuit court did not address
how such a decrease would result in the Legislature failing to comply with its article XII,
section 1 duty to provide a thorough and efficient system of free schools.
First, it is undisputed that the Act does not contain any language that
mandates a reduction in public school funding. The Act’s funding comes from a new,
general revenue appropriation which is “in addition to all other amounts” required under
Article 9A of Chapter 18 of the West Virginia Code for public schools. Id. § 18-9A-25(a).
Thus, it is clear that the Act does not directly reduce funds available for public schools.
For that reason, Respondents relied on a series of hypothetical harms that the
Act could possibly produce: the Hope Scholarship Act could cause students to leave the
public school system; this decrease in enrollment could render the current school funding
formula inadequate to fund our public schools; the Legislature, at that time, could fail to
adjust the school funding formula or could fail to supplement school funding in some other
fashion, leading to a violation of article XII, section 1.
We again emphasize that Respondents brought a facial challenge to the
constitutionality of the Act and had to “establish that no set of circumstances exists under
which the legislation would be valid; the fact that the legislation might operate
unconstitutionally under some conceivable set of circumstances is insufficient to render it
wholly invalid.” Lewis, 185 W. Va. at 691, 408 S.E.2d at 641. We find that the hypothetical
harms that the Act might possibly produce are insufficient to support the circuit court’s
ruling that the Act is facially unconstitutional.
30
Article XII, section 1 of the West Virginia Constitution requires the
Legislature to provide for a thorough and efficient system of free schools. Sufficient
funding is implicit in the definition of a thorough and efficient system of public schools.
Pauley, 162 W. Va. at 706, 255 S.E.2d at 877. We agree with Petitioners’ argument that
whether public schools will be sufficiently funded in the event of a decrease in public
school enrollment, regardless of the causes or contributing factors to such decline, depends
on an independent decision of the Legislature—that decision is not dictated by any
provision of the Act. Importantly, there is no ceiling in the school funding formula and the
Legislature may adjust it in any manner it deems appropriate to meet its constitutional
obligation to provide a thorough and efficient system of free schools if faced with an
enrollment decrease. As this Court has noted, the Legislature “is free to amend the [school
funding formula], or to replace it with another provision, so long as any new statute meets
constitutional muster as set out in article twelve, section one, article ten, section five, and
our cases interpreting these provisions.” W. Va. Education Assoc. v. Legislature, 179
W.Va. 381, 382 n. 2, 369 S.E.2d 454, 455 n.2 (1988). 22
22
Indeed, the Legislature has recently made such adjustments to the school funding
formula to address possible funding deficiencies to cover transportation costs in sparsely
populated counties. In 2020, the Legislature adopted W. Va. Code § 18-9A-7a, which
provides:
(a) The Legislature finds that the present method of
calculating the allowance for service personnel in §18-9A-5
may not provide sufficient funding to meet the student
(continued . . .)
31
Additionally, if the Legislature should fail to sufficiently fund public schools
due to a decrease in public school enrollment, such that it is no longer complying with its
duty under article XII, section 1 to provide a thorough and efficient system of free schools,
Respondents could challenge such inaction by the Legislature at that time. This Court has
addressed similar challenges involving claims of actual harm under article XII, section 1.
In Pauley, parents of children attending public schools in Lincoln County
alleged that the State’s system for financing public schools was unconstitutional because it
denied their children the “thorough and efficient” education required by article XII, section
1, and denied them equal protection of the law. 162 W. Va. at 673, 255 S.E.2d at 861. In
another article XII, section 1 case, the West Virginia Board of Education filed a writ of
mandamus after the Governor ordered that, as part of a statewide budget cut, public
education funding would be reduced by 2%. State ex rel. Bd. of Educ. of Kanawha Cnty.
v. Rockefeller, 167 W. Va. 72, 281 S.E.2d 131 (1981). The Court held in syllabus point
two of Rockefeller that “[b]ecause of public education’s constitutionally preferred status in
transportation needs of lower-population density districts
covering a large geographic area.
(b) The State Board of Education shall propose
revisions to the calculation of the allowance for service
personnel in §18-9A-5 to provide additional funded service
personnel positions for the districts described in subsection (a)
of this section and shall report the proposal to the Legislature
before September 1, 2020.
32
this State, expenditures for public education cannot be reduced . . . in the absence of a
compelling factual record to demonstrate the necessity therefor.” Id.
Both Pauley and Rockefeller are easily distinguishable from the instant case.
In the former, the parents alleged that the school funding formula itself was so deficient
that it failed to provide their children with the constitutionally mandated thorough and
efficient education. In the latter, the aggrieved parties challenged an executive order
reducing expenditures already authorized by the Legislature for public education. Those
cases did not involve a series of hypothetical harms that might occur, which might, if the
Legislature failed to act, result in a violation of article XII, section 1.
In sum, we find that the circuit court abused its discretion by ruling that the
Act impinges on a child’s fundamental right to an education by “reducing the funds
available to public schools through the state-incentivized reduction in public school
enrollment.” The Legislature has a Constitutional duty, through its budgetary process, to
fund a thorough and efficient system of free schools. The Act does not modify that duty,
nor does it take money directly from the school funding formula to pay for the Hope
Scholarship Program. Because we find that the Act does not impinge on a child’s
fundamental right to an education by “reducing the funds available to public schools
through the state-incentivized reduction in public school enrollment,” we conclude that our
strict scrutiny test does not apply to this issue.
C. Spending Public Funds on Non-Public Education
33
Respondents contend that the Act is unconstitutional because it directs public
funds to be spent on non-public education. The circuit court agreed, concluding that the
Act violates article XII, sections 4 and 5, and article X, section 5 of West Virginia’s
Constitution because, in the circuit court’s view, such provisions “require that state taxation
and funding pay only for public K-12 education.”
We find that this conclusion is contrary to the plain language of our
Constitution. Article XII, section 4 provides that the “School Fund” shall be dedicated to
support “free schools . . . and to no other purpose whatever.” (Emphasis added). Article
XII, section 4 does not contain any prohibition on the Legislature using general revenue
funds to support educational initiatives in addition to its article XII, section 1 duty to
provide a through and efficient system of free schools. See Syl. Pt. 1, in part, Foster, 155
W. Va. 619, 186 S.E.2d 837 (“[T]he legislature has the authority to enact any measure not
inhibited [by the West Virginia Constitution].”). As we have already recognized, the Hope
Scholarship Program’s funding comes from a new, general revenue appropriation that is
“in addition to all other amounts” needed for public schools. W. Va. Code § 18-9A-25(a).
The Hope Scholarship Program is not funded from the “School Fund.” Because it does not
take any money from the “School Fund,” and because article XII, section 4 does not
prohibit the Legislature from using general revenue funds for additional educational
34
initiatives, we find that the circuit court abused its discretion by concluding that the Act
violates article XII, section 4. 23
Similarly, article XII, section 5 and article X, section 5, do not prohibit the
Legislature from using general revenue funds for the Hope Scholarship Program. Article
XII, section 5 provides four ways that the Legislature “shall provide for the support of free
schools;” 24 it does not contain any restrictive language stating that the Legislature’s general
taxation authority may only be used for public education. The circuit court’s erroneous
finding that article XII, section 5 “grants a broad mandate to the Legislature to use general
23
The North Carolina Supreme Court rejected a similar argument, finding that:
Insofar as the General Assembly appropriates a portion of the
State’s general revenues for the public schools, Section 6
mandates that those funds be faithfully used for that purpose.
Article IX, Section 6 does not, however, prohibit the General
Assembly from appropriating general revenue to support other
educational initiatives. See Preston, 325 N.C. at 448–49, 385
S.E.2d at 478 (“All power which is not expressly limited by the
people in our State Constitution remains with the people, and
an act of the people through their representatives in the
legislature is valid unless prohibited by that Constitution.”
(citations omitted)). Because the Opportunity Scholarship
Program was funded from general revenues, not from sources
of funding that Section 6 reserves for our public schools,
plaintiffs are not entitled to relief under this provision.
Hart, 774 S.E.2d at 289.
24
The four ways the Legislature shall provide for the free schools under article XII,
section 5, are: 1) interest from the School Fund, 2) proceeds from forfeitures and fines, 3)
general taxation, and 4) permitting, by statute, localities to raise their own funds for their
schools. W. Va. Const. art. XII,§ 5.
35
taxation authority to provide only for free schools,” is inconsistent with the plain language
of the provision and with the Legislature’s authority to enact any measure not inhibited by
the Constitution. See Syl. Pt. 1, Foster.
Additionally, article X, section 5 does not prohibit the Legislature from using
general revenue funds to support the qualifying expenses specified in the Hope Scholarship
Act. See W. Va. Code § 18-31-7. Article X, section 5 provides:
The power of taxation of the Legislature shall extend to
provisions for the payment of the state debt, and interest
thereon, the support of free schools, and the payment of the
annual estimated expenses of the state; but whenever any
deficiency in the revenue shall exist in any year, it shall, at the
regular session thereof held next after the deficiency occurs,
levy a tax for the ensuing year, sufficient with the other sources
of income, to meet such deficiency, as well as the estimated
expenses of such year.
W. Va. Const. art. X, § 5.
The Hope Scholarship Program’s funding comes from the “general fund.”
Thus, its funding is part of “the annual estimated expenses of the State,” which is
permissible under article X, section 5. As with the other two constitutional provisions
considered herein, article X, section 5 does not prohibit the Legislature from funding the
Hope Scholarship Program.
Based on the foregoing, we find that the circuit court abused its discretion by
ruling that the Act violates article XII, sections 4 and 5, and article X, section 5.
D. The West Virginia Board of Education’s Authority
36
According to article XII, section 2, “[t]he general supervision of the free
schools of the State shall be vested in the West Virginia board of education which shall
perform such duties as may be prescribed by law.” W. Va. Const. art. XII,§ 2, in relevant
part. The circuit court found that the Act violates this provision, reasoning:
[The Act] unconstitutionally interferes with the Board of
Education’s supervisory and rule-making authority over public
funds spent to educate the state’s children by creating a
separate Hope Scholarship Board to supervise spending of
public funds for vouchers. [The Act] unconstitutionally
restricts the WVBOE’s exercise of academic and financial
oversight over the use of these funds, despite the fact that
[Hope Scholarship] funds flow directly through the [West
Virginia Department of Education].
We disagree. The plain language of article XII, section 2 provides that the
Board of Education has constitutional authority over the “general supervision of the free
schools of the State[.]” Id. It does not grant the Board of Education authority over
educational initiatives the Legislature chooses to enact outside of the free school system.
Thus, we find the circuit court abused its discretion by ruling that the Act violates article
XII, section 2.
E. Special Law
Finally, we readily dispose of the contention that the Act is a special law.
The circuit court noted that the “West Virginia Constitution has a strong presumption
against laws that treat people differently, preferring generally applicable laws.” It ruled
that the Act improperly creates two classes of students: “students in private school or
homeschooling who have to pay for public school resources—the [Hope Scholarship]
37
recipients—and those who do not—students without [the Hope Scholarship].”
Additionally, the court found that the antidiscrimination protections that are available to
public school students “are not available to students receiving public funds for private
education expenditures under the [Hope Scholarship].”
Petitioners assert that the Act is not a special law because “it does not treat
some people differently than others, or exempt some from the treatment others are getting.”
Petitioners state that all families with school-aged children “have the same choice whether
to apply, are subject to the same eligibility criteria, must follow the same spending
restrictions, and receive the same scholarship amounts.” Additionally, Petitioners argue
that the Act “does not create special hurdles for anyone. It applies uniformly to all families
who wish to take advantage of its provisions.” We agree.
This Court addressed our review of whether an action of the Legislature
constitutes special legislation in syllabus point seven of Appalachian Power Co. v. Gainer,
149 W.Va. 740, 143 S.E.2d 351:
In due recognition of fundamental principles relating to
the separation of powers among the legislative, executive and
judicial branches of government, courts recognize the power of
the legislature to make reasonable classifications for legislative
purposes. Courts are bound by a presumption that legislative
classifications are reasonable, proper and based on a sound
exercise of the legislative prerogative. If a statute enacted by
the legislature applies throughout the state and to all persons,
entities or things within a class, and if such classification is not
arbitrary or unreasonable, the statute must be regarded as
general rather than special. In making classifications for
legislative purposes, a wide range of discretion must be
conceded by the courts to the legislature. In any case of doubt,
courts must favor a construction of a statute which will result
38
in its being regarded as general rather than special. A statute
must be regarded as general rather than special when it
operates uniformly on all persons, entities or things of a class.
A law which operates uniformly upon all persons, entities or
things as a class is a general law; while a law which operates
differently as to particular persons, entities or things within a
class is a special law.
(Emphasis added).
We also explained that “the ‘special legislation’ prohibition is essentially an
equal protection clause.” State ex rel. Cooper v. Tennant, 229 W. Va. 585, 605, 730 S.E.2d
368, 388 (2012) (internal citation omitted). Moreover, the special legislation prohibition
serves to prevent the arbitrary creation of special classes, and
the unequal conferring of statutory benefits. A legislative
enactment in order to be valid under this clause, must operate
alike on all persons and property similarly situated. As long as
a statute applies uniformly upon a class, and as long as the
classification utilized is neither arbitrary, nor unreasonable, the
statute is general.
State ex rel. City of Charleston v. Bosely, 165 W. Va. 332, 339-40, 268 S.E.2d 590, 595
(1980).
We find that the Act applies to all families in the state with school-aged
children who choose to participate. All families applying for the Hope Scholarship
Program must agree to the same terms, including that they will: 1) “provide an education
for the eligible recipient in at least the subjects of reading, language, mathematics, science,
and social studies;” 2) “use the Hope Scholarship funds exclusively for qualifying
expenses;” 3) “comply with the rules and requirements” of the program; and 4) “afford the
[eligible recipient] opportunities for educational enrichment such as organized athletics,
39
art, music, or literature.” W. Va. Code § 18-31-5(d)(3). Further, all families whose
applications are approved and who continue to meet the program requirements throughout
the school year receive the same scholarship amount.
Because the Act operates uniformly on all families who voluntarily choose
to participate, we find that under our holding in syllabus point seven of Gainer, the Act
must be considered a general law. 25 Thus, we find that the circuit court abused its
discretion by ruling that the Act is a special law.
IV. CONCLUSION
Accordingly, for the reasons stated above, we find that the circuit court erred
by finding the Act unconstitutional, and abused its discretion by permanently enjoining the
State from implementing the Act. We therefore reverse the circuit court’s July 22, 2022,
order and dissolve the permanent injunction it entered. We remand this matter to the circuit
court with directions for it to enter judgment in Petitioners’ favor.
Reversed and Remanded with Directions.
25
We further agree with Petitioners that the circuit court erred by finding that the
Act unconstitutionally differentiates “students protected from all discrimination, and
students unprotected from most types of discrimination.” As Petitioners note, the Act does
not change the status quo. It merely states that participating schools and education service
providers are subject to the same antidiscrimination laws which they were subject to prior
to the Act being passed. See W. Va. Code § 18-31-11(d).
40