A recently filed lawsuit against West Virginia’s Hope Scholarship reads like plaintiffs threw spaghetti at a wall and hoped some of it would stick. The plaintiffs claim the scholarship is unconstitutional, but the problems they blame on Hope predate it, and the funding and legal claims fall apart on closer inspection.
Thousands of West Virginia kids are benefiting from the Hope Scholarship, an education savings account (ESA) program enacted in 2021 that allows parents to use state funds for a variety of educational expenses rather than sending their child to their assigned public school. Eligibility for the scholarship was limited in the first several years to students who were transferring out of public schools or entering kindergarten for the first time. The 2026–27 school year is the first when all students in the state are eligible.
In a previous lawsuit, State v. Beaver in 2022, the West Virginia Supreme Court of Appeals upheld the Hope Scholarship. The Beaver ruling held that the scholarship law is constitutional on its face, meaning that concerns about possible future problems are not enough to make the law itself unconstitutional. But it acknowledged the program could be challenged in the future should the legislature “fail to sufficiently fund public schools due to a decrease in public school enrollment.” The new lawsuit contends that the hypothetical future has now arrived, given that Hope has been implemented and expanded.
But do the facts back that claim?
Public School Problems Predate Hope Scholarship
The current plaintiffs are all taxpayers and parents of children in Mingo County public schools. Last year, the state seized control of the district, essentially taking over all decision-making, due to the local board’s poor management. The lawsuit claims that the expansion of the Hope Scholarship, paired with the legislature not changing how public school funding is allocated, has rendered the program unconstitutional. It points to the state takeover and proposed school closures, including Dingess Elementary School, which several plaintiffs’ children attend, as evidence of the fiscal damage it attributes to Hope.
Trying to pin all of Mingo’s or Dingess’ problems on Hope is dubious on several fronts. For starters, the public school enrollment decline cited in the lawsuit started before the Hope Scholarship. Enrollment in Mingo County Schools has fallen by more than 1,300 students—or 29 percent—in the past two decades. But only 50 students in the county received a Hope Scholarship in the 2024–25 school year (most recent data available). It’s also worth mentioning that Mingo County’s overall population has fallen 20 percent (a loss of more than 5,300) since 2010.
The situation at Dingess Elementary has been more mixed, as enrollment has fluctuated amid changes in attendance zones and school leadership, but the trend has been downward over the past decade. In the four years preceding Hope, enrollment at Dingess fell by 24 percent; in the first four years after the scholarship became available, enrollment fell by 27 percent. This year, fewer than 70 students are attending the school, which is an admittedly sharp drop from last year’s 90. But given all the factors at play, it’s hard to claim the Hope Scholarship is solely responsible, or that enrollment would be stable without the program. Plus, declining enrollment is only part of the problem; when the district announced Dingess would be closing, it said the school needs an estimated $9.2 million in repairs and updates.
The lawsuit implies Hope is to blame for the state taking control of Mingo County Schools, but state officials did not cite the scholarship as a motivating factor. Rather, they claimed that problems such as a bad political climate, conflicts between board members, and board members overstepping their authority were negatively impacting the schools’ work and forced the state to intervene. Moreover, this was the third time in 27 years that the state took control in Mingo, suggesting there are problems unrelated to Hope.
The lawsuit later claims the plaintiffs “bear the fiscal consequences of the Program without practical access to the choice the Program was enacted to provide,” since they don’t have a participating full-time private school nearby. Yet this destroys the plaintiffs’ own argument: if there are no viable alternatives nearby for Hope recipients, how can the program be the primary cause of their problems?
Per Pupil Funding Has Increased Since Hope Was Enacted
Another important point is that since the program was enacted, state basicaid—what the legislature provides each county school system after calculating the cost of core public school operations—has increased by nearly 5 percent even after accounting for inflation. During the same period, public school enrollment fell by more than 6 percent. The combination of more funding and declining enrollment means the growth in basic aid per pupil was even higher—up 12 percent after adjusting for inflation.
It’s worth noting that the amount individual county districts receive from the state varies based on factors such as population density, transportation costs, and local property wealth. As a result, in the 2025–26 school year, Mingo County public schools received more than $8,300 per student in state funding, including just over $6,900 per student in basic aid. The Hope Scholarship amount is based just on the statewide average basic aid per pupil, with none of those additional adjustments. As such, Hope recipients in Mingo County received a little under $5,300 last year, much less than the district received per student.
According to the lawsuit, “Every county school system, including those serving communities with no practical access, bears the consequences of an enrollment-linked funding structure and of a competing claim on the same general revenue.” By definition, school districts only lose enrollment-linked funding if they lose students. In West Virginia, that funding loss happens whether or not the departing student participates in the Hope Scholarship. In counties with no other practical alternatives, it seems unlikely that the scholarship will drive significant enrollment losses. And, again, basic state aid has increased since Hope was enacted.
Religious Question a Non-Starter Based on US Supreme Court Precedent
Plaintiffs also contend the Hope Scholarship represents compelled support of religion in violation of Article III, Section 15 of the state constitution. But that section bars compelled support of “religious worship, place or ministry” or churches; it does not mention schools or instruction. Furthermore, Article XII, Section 12 instructs the legislature to “foster and encourage, moral, intellectual, scientific and agricultural improvement.” This directive includes, when practicable, providing for “such institutions of learning as the best interests of general education in the State may demand.”
The plaintiffs acknowledge recent US Supreme Court rulings in Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022), which hold that religious schools may not be excluded from generally available public benefits because of their religious character. But their proposed remedy—“a limitation on the appropriation as a whole”—appears difficult to square with Espinoza since Chief Justice Roberts’ opinion rejected substantially the same logic.
That case arose after the Montana Supreme Court ruled that the state’s tax credit scholarship program aided religious schools in violation of the state constitution’s no-aid provision and then overturned the entire program based on that violation. When the parents who brought the case appealed to the US Supreme Court, the state’s Department of Revenue argued that there was no religious discrimination because the state Supreme Court had struck down the entire program, thereby treating religious and nonreligious schools the same. Since everyone was now on equal footing, the Department argued, there was no violation of the Free Exercise Clause.
The Supreme Court rejected that argument, pointing out that the program would not have been struck down in the first place if the state supreme court had not wrongly believed the state’s no-aid provision was constitutional. This is strikingly similar to what the WV plaintiffs are asking the Court to do: limit a generally available scholarship program due to the religious nature of some providers. There doesn’t seem to be any reason to expect the Court to treat this differently just because it’s a compelled support clause instead of a no-aid clause.
Lawsuit’s Final Count Is a Real Head-Scratcher
The final count in the lawsuit reads more like a fishing expedition than a developed constitutional claim. It focuses on Article X, Section 6 of the Constitution, which forbids the state from lending its credit or taking on someone else’s debt. But the Hope Scholarship simply provides funds that families can use for approved education expenses. The plaintiffs allege that scholarship funds are being disbursed to private entities without accountability or oversight, so they seek a detailed accounting of program disbursements. But the complaint does not explain how funding scholarships could be considered a pledge of state credit or the assumption of private debt.
The Requested Remedy Could Ultimately Kill Hope
In terms of the remedy, the plaintiffs describe their request as narrow—a detailed accounting of disbursements and an injunction limited to the expansion, with no recovery of funds already spent and no disruption for current recipients. But in the “prayer for relief,” they ask the court to declare the program unconstitutional under several articles and then to enter a permanent injunction “consistent with the Court’s declaratory rulings.” That is not a narrow request.
There’s another problem with the remedy. The plaintiffs’ primary claimed constitutional violation is the legislature’s failure to fund the formula after enrollment declined. Since funding has increased in recent years, it must just be that they want it to increase more. This is something the legislature could cure tomorrow by appropriating more to public schools and leaving Hope alone. The plaintiffs even concede they aren’t asking the court to set appropriation levels. Shrinking the Hope Scholarship isn’t the remedy for the injury they allege. It’s just the outcome they want.
The Hope Scholarship Offers Hope
Understandably, parents are worried about their kids’ schools potentially closing, especially considering the lack of other options in the area. But, given the long-running enrollment decline and the reported repair needs, there is strong reason to think Dingess would face closure even without Hope. In the absence of the Hope Scholarship, most parents would be stuck with whatever plan the government officials came up with. Thanks to the scholarship, West Virginia parents are increasingly able to take matters into their own hands.
Instead of tying up the courts and spending an unknown amount of money on yet another lawsuit, what if the plaintiffs instead gave choice a chance? Choice-based options flourish in states with universal ESAs. Families upset about their school closing could take advantage of the Hope Scholarship and form a group to start a microschool. An independent microschool would be answerable to parents and the local community instead of the county board. That means parents would have much greater say in how their children are being educated. It could also offer more flexible scheduling options for interested families, such as part-time in person and part-time at home.
After more than a century and a half of the government running schools, people have come to accept it as the default way of educating their kids. But for most of American (and human) history, education looked more like what we now call homeschooling or microschooling than like the current public school system. For parents in Dingess and throughout West Virginia, the Hope Scholarship is a chance to reclaim control over their children’s education and make sure it’s the right fit for them.
