Ep. 345: Legal Update – October 2022

October 19, 2022

In this edition of the Legal Update, Vice President of Legal Affairs, Leslie Hiner, reports on good news out of West Virginia and Arizona. The Courts have ruled in favor of educational freedom and families in both of these states.

Leslie Hiner: Hello, everyone. This is Leslie Hiner. I’m the VP of Legal Affairs at EdChoice and run the Legal Defense and Education Center, and we regularly do a legal podcast about once a month. And normally, I do this podcast with Jordan Zakery who works as part of our state initiatives, but Jordan is ill today, and so, it’s just me. And I have some news to report. This will be a little bit shorter podcast than usual, but the news is just so big that it just can’t wait.

The news is this, in the state of Arizona, which has had an education savings account program for several years now, and in fact, was the first state to enact an education savings account program, the legislature this year decided to expand that so that every child in the state of Arizona may access an education savings account to access whatever educational resources the parent deems appropriate and the best fit for the child.

This is the first state to have such a large, universal program, and we’re quite proud of Arizona for, not only this effort this year, but the countless efforts that Arizona has made over the last 20 years to make sure that all the children in that state have access to education. This is really about allowing a child to have access to education, the kind of education fits best for that child.

Now, what’s interesting about Arizona is that Arizona also has a provision that would allow someone to challenge this new law by placing it on the ballot as a ballot initiative in 2024. There’s an organization in Arizona that tried successfully to do just that concerning a prior advancement of their education savings count program, and it seemed to be quite easy for them to get all the signatures that they needed to be able to put the initiative on the ballot. However, that was a few years ago. This year, they were not successful. Parents, citizens simply did not support an effort to limit the parent’s choice of education, to limit a child’s access to education, to limit a family’s ability to access education savings accounts.

So kudos to Arizona, to the governor, the legislators, the advocates, least so many parents and citizens in that state who have been very supportive of making sure that every child has access to education that fits for that child. So that’s the first piece of good news.

The second piece of good news is from West Virginia. West Virginia, last year passed the Hope Scholarship. The Hope Scholarship is also an education savings accounts, much like Arizona’s, and it applies to almost every child in the state of West Virginia. And within the next couple of years, it should expand to be just like Arizona’s, that every child in the state will have access to an education savings account.

But of course, every time something really good happens in education, somebody has to step up and sue. And that’s what happened in West Virginia. There were a bunch of hotshot lawyers from out-of-state who came into the state and tried to deny the parents’ rights in West Virginia to be able to access the education that they needed for their children.

Kudos in this case goes to the court system, in particular, in West Virginia. It was quite astounding to those of us who have been involved in educational choice litigation for many years now. Typically, it takes time for a case to work through the court system. However, in West Virginia, the courts recognized and respected the fact that there was so many parents, thousands of parents in West Virginia who needed an answer. Is this constitutional or it’s not constitutional? We just need to know. And so, the courts acted very swiftly. They made this their priority and their emergency to act as quickly as the courts could act in considering the constitutionality of West Virginia’s Hope Scholarship.

Now, advocates believed that we would get a decision in this case, probably close to Thanksgiving, but we got an early Thanksgiving present because just this week, the West Virginia Supreme Court overturned an adverse ruling against the program from the lower courts and also lifted the injunction against the program that was opposed by the lower court. The court did not issue an extended written opinion, but said instead, because this was a matter of such high priority, that they decided to issue an order to overturn the lower court’s decision, to allow the program to go forward. And now they’ll get to work on writing down their reasons for why they believe that the education savings account, the Hope Scholarship in West Virginia is in fact constitutional.

This is an unusual move for a court, but again, kudos to West Virginia’s Supreme Court of Appeals. They recognize the imperative to answer parents in their state and to take care of those parents and respect the wishes of the parents in their state by very quickly letting them know that, yes, in fact, education savings accounts are constitutional in West Virginia. I also offer kudos to West Virginia’s Attorney General Senator, Patricia Rucker, who has been the primary legislative advocate for education savings accounts in West Virginia, and to all of the parents in West Virginia who really stepped up and made their voices heard. The parents spoke loudly, clearly, consistently, and that made a difference. That simply made a difference.

So, this week, happy to share with you, we have two huge success stories for educational choice, huge success stories for the children of Arizona and the children of West Virginia, who now, if they need something different for education so that they can learn, and thrive, and be happy, and live successful lives, they will be able to access that education. Good news from Arizona and West Virginia.

Please stay tuned to this podcast. And as events continue to unfold and as we get the formal written opinion from the West Virginia Supreme Court of Appeals, we’ll be posting that on our website at edchoice.org. Thank you very much for listening.