Can a West Virginia public school refuse to enroll a student, mark the student truant, or ban the student from a private after-school program just because the family is using dual enrollment to qualify for the Hope Scholarship?

Plain-English summary

The West Virginia Hope Scholarship is a state-funded education savings account. To qualify, a student must be enrolled full-time and attend a public school for at least 45 continuous calendar days during an instructional term. Some families dual-enroll their children: full-time public school plus a privately-funded program outside public school hours, often a virtual public school in the evening alongside an in-person private school during the day. After 45 days of public attendance, the family can file a notice to invoke the compulsory-attendance exemption, apply to the Hope Scholarship, and (if accepted) unenroll from the public school and use the funds for private school tuition.

Some local school officials have pushed back. A few schools warned parents they would not allow students to enroll if those students were simultaneously enrolled in a non-public school program. A few schools threatened to mark dual-enrolled students truant even though the students were meeting attendance requirements. Some county boards considered policies prohibiting dual enrollment to render a student Hope Scholarship eligible.

The State Treasurer (in his role as Hope Scholarship Board Chairman) asked the Attorney General two questions:

1. Can a board or school refuse to enroll a student because the student is simultaneously in a private program?
2. Can a board or school ban a public school student from a private program outside school hours?

The Attorney General's answer to both: no.

On the first question (refusing public enrollment). West Virginia statutes and constitution treat public-school access as a near-absolute right for students of statutory age. W. Va. Code § 18-5-15(a) says public schools "shall be open for the full instructional term to all persons who have attained the [statutorily set] entrance age." The Supreme Court of Appeals has read these provisions to mean public schools are "presumptively open to all persons of proper age" (Linkinoggor, 1986). The only recognized exceptions involve inoculation, infectious disease, and disruptive behavior. Dual enrollment fits none.

The constitutional analysis reaches the same place by a different route. Education is a fundamental right under the West Virginia Constitution. Denying enrollment triggers strict scrutiny. The opinion finds no compelling state interest justifying exclusion of dual-enrolled students who are meeting all academic and attendance requirements, and says outright bans are not narrowly tailored. Federal constitutional law adds another constraint: Plyler v. Doe (1982) requires a substantial state interest to deny a group of children public schooling. The opinion says preserving financial resources is not such an interest.

A separate arbitrariness ground reaches the same destination: Blessing (1985) requires school boards to exercise discretion intelligently, without arbitrary or capricious decisions. The opinion says barring dual-enrolled students could violate that standard.

On the second question (banning private programs outside school hours). Boards of education have only the powers the Legislature gave them, as Napier explains. The opinion finds no statute granting authority over students' private educational activities outside school hours. The general powers in § 18-5-13 concern public-school activities and property. The extracurricular-activities authority under § 18-2-25 reaches activities "sponsored by a school, a county board or an organization sanctioned by a county board," not unaffiliated private programs.

The opinion also identifies constitutional problems with prohibiting private educational programs outside school hours. Meyer v. Nebraska (1923), Pierce v. Soc'y of the Sisters of the Holy Names of Jesus & Mary (1925), and Yoder (1972) protect parents' role in choosing education for their children. Pierce rejects a general state power to force children to accept instruction from public teachers only. The opinion also cites Article III, Section 10 of the West Virginia Constitution for parental rights.

The opinion also frames a structural concern: the Hope Scholarship Act is a legislative choice that local boards must respect. It quotes Washington v. Seattle Sch. Dist. No. 1 (1982) for the rule that local school boards "must give effect to policies announced by the state legislature" and Fisher (1929) for the warning against defeating a statute's purpose.

The opinion ends with an explicit warning: "Any local school authorities who are acting or intending to act against dual-enrolled students should stop immediately." And: "We stand ready to act if we suspect that local officials are continuing to do so."

A footnote limits the holding to students who are full-time public school enrollees meeting public-school attendance and academic requirements. The opinion does not extend to part-time arrangements where a private-school student wants to pick up some public school courses on the side. Janasiewicz (1982) addresses that situation differently.

What this means for you

Parents using or considering dual enrollment

The opinion concludes a public school may not bar a dual-enrolled student from enrollment, may not mark a dual-enrolled student truant where the student is meeting attendance requirements, and may not prohibit a public-school student from participating in private educational programs outside public-school hours. The opinion's final paragraph states directly that "[a]ny local school authorities who are acting or intending to act against dual-enrolled students should stop immediately."

Public school administrators and county school board members

The opinion concludes that policies barring dual-enrolled students from public school violate W. Va. Code § 18-5-15(a) and would fail strict scrutiny under Article XII, Section 1 of the West Virginia Constitution, and would also fail the Plyler v. Doe substantial-state-interest test under the U.S. Constitution. The opinion further concludes that the prospect of mid-year departures is not a "compelling state interest" and that an outright bar is not "narrowly tailored." The opinion specifically states that the AG's Office "stand[s] ready to act if we suspect that local officials are continuing to do so."

Private school operators

The opinion concludes that public schools may not prohibit their students from participating in private educational programs outside public-school hours. The opinion's footnote 1 limits its conclusions to students who are enrolled full-time in public schools and meeting all attendance and academic requirements, and notes that the converse situation (full-time private student wanting to "dual enroll" in some public school programs part-time) is governed by different authority (1966 letter; Janasiewicz; Snyder v. Charlotte Pub. Sch. Dist.).

County prosecutors

The opinion identifies the legal vulnerabilities of a no-dual-enrollment policy across five dimensions: § 18-5-15(a), the West Virginia Constitution's Article XII, the Plyler test under the U.S. Constitution, the Meyer/Pierce/Yoder parental-rights line, and the Blessing/Scott arbitrariness rule.

Hope Scholarship Board

The opinion concludes that the Hope Scholarship Act's 45-day-of-public-attendance eligibility rule reflects a legislative judgment that local boards must "give effect to" (Washington v. Seattle Sch. Dist. No. 1) and cannot "defeat the very purpose of the statute" (Fisher v. Jackson).

Homeschool advocates

The opinion's parental-rights analysis rests on Meyer, Pierce, Yoder, Troxel, and the parallel state right under W. Va. Const. art. III, § 10 (citing In re Visitation of L.M.). The analysis is framed around the specific dual-enrollment fact pattern presented.

Common questions

Q: Can a public school refuse to enroll my child because I plan to use the Hope Scholarship? A: No. The school must enroll your child if your child is of statutory age, is properly inoculated, and is not a disruption risk. Hope Scholarship intent is not a basis for refusing enrollment.

Q: Can the school mark my dual-enrolled child truant if my child attends every public school day? A: No. Truancy is about not attending. If your child is meeting public school attendance requirements, the truancy charge has no factual basis and would not survive a challenge.

Q: Can the school ban my child from attending a private program in the evening? A: No. The school's authority does not extend to your child's outside-of-school activities. The opinion finds no statute granting that power and several constitutional barriers.

Q: Why is the 45-day rule important?
A: The Hope Scholarship statute (W. Va. Code § 18-31-2(5)(B)) requires 45 continuous days of public school attendance to be eligible. After that, families can apply, get accepted, and unenroll. The structure depends on the public school not blocking enrollment during the 45-day window.

Q: Does this opinion apply if I want to attend public school part-time and private school part-time? A: Probably not directly. Footnote 1 limits the opinion to students enrolled full-time in public schools. Part-time arrangements are governed by Janasiewicz (1982) and a 1966 AG opinion that found no right to compel selective public-school enrollment. Discuss the specific arrangement with counsel.

Q: What if a school administrator argues the dual enrollment hurts the school's budget? A: The opinion says there is no evidence that enough students are leaving to create real challenges for local schools. It suggests asking families about withdrawal plans to help schools plan and budget. It also cites Plyler (1982) for the rule that preserving financial resources is not a substantial interest that justifies excluding children from public school.

Q: What if a school administrator argues this is about academic integrity, not budget? A: The opinion assumes the students in question meet all public school academic and attendance requirements. Its conclusion is limited to that situation; it does not analyze a separate academic-integrity objection.

Q: What enforcement options does the AG have?
A: The opinion does not specify an enforcement process. It says local officials acting against dual-enrolled students should stop immediately and that the Attorney General's Office stands ready to act if it suspects they continue.

Q: Can a county school board adopt a no-dual-enrollment rule by board policy? A: No. The opinion makes clear that the statutory and constitutional barriers reach board policies as well as individual school decisions.

Q: Does the analysis change if the private program is religious? A: The opinion quotes Yoder (1972) on parents' interest in their children's religious upbringing. It does not say that a religious program changes the level of scrutiny for the dual-enrollment policies addressed here.

Background and statutory framework

The Hope Scholarship Act creates education savings accounts for eligible West Virginia students. The opinion describes full-time public-school attendance for 45 continuous days during an instructional term as one way to qualify. It says students can then file a notice to invoke the compulsory-attendance exemption, apply for an award, and, once accepted, use the account for qualified educational expenses.

The statute's 45-day rule is the linchpin of the dual-enrollment dispute. Some families have used the rule by enrolling in both a full-time public school program and a private supplementary program during the qualifying window. The opinion treats the legislative choice as deliberate and binding on local boards.

The right-to-public-education framework rests on multiple sources. Article XII, Section 1 of the West Virginia Constitution requires the State to provide "a thorough and efficient system of free schools." The Supreme Court of Appeals has read this as creating a fundamental right, as the opinion explains through Adams and Beaver.

The federal framework adds parental rights as a further constraint. The opinion cites Meyer v. Nebraska (1923) on parents' power to direct education, Pierce v. Soc'y of the Sisters of the Holy Names of Jesus & Mary (1925) on the state's lack of a general power to require instruction only from public teachers, and Yoder (1972) on parents' interest in religious upbringing.

The board-of-education-authority framework comes from Napier and earlier decisions. Boards exercise only powers expressly conferred or fairly implied. The opinion finds no source of authority for banning students from private educational activities outside school hours.

Under Blessing, school boards must exercise their discretion intelligently and without arbitrary or capricious decisions. The opinion says barring students from dual enrollment could violate that standard.

Finally, the opinion cites Washington v. Seattle Sch. Dist. No. 1 (1982) and Fisher v. Jackson (1929) to say that local school boards must respect the Legislature's Hope Scholarship policy.

Citations and references

Statutes (W. Va. Code unless noted):

• § 5-3-1 (AG opinions to officers, boards)
• §§ 18-31-2, 18-31-2(5)(B), 18-31-5, 18-31-7 (Hope Scholarship)
• § 18-8-1(m) (compulsory attendance exemption)
• §§ 18-5-13, 18-5-15(a), 18-5-18(a) (public school open to all, board powers)
• §§ 18-2-25(a), 53-8-1(8), 18-10F-2(f), 18-20-1 (extracurricular and special education)

Constitutions:

• W. Va. Const. art. XII, § 1; art. III, § 10
• U.S. Const. amend. XIV

Leading cases:

• Adams, 196 W. Va. 9, 467 S.E.2d 150 (1995)
• Linkinoggor, 176 W. Va. 410, 344 S.E.2d 633 (1986)
• Kingery, 157 W. Va. 667, 203 S.E.2d 358 (1974)
• Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc'y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925); Yoder, 406 U.S. 205 (1972)
• Plyler v. Doe, 457 U.S. 202 (1982)
• Troxel v. Granville, 530 U.S. 57 (2000)
• Napier, 209 W. Va. 719, 551 S.E.2d 362
• Blessing, 176 W. Va. 32, 341 S.E.2d 407 (1985)

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/17561/download?inline

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

State of West Virginia
Office of the Attorney General
(304) 558-2021
Fax (304) 558-0140

Patrick Morrisey
Attorney General

November 16, 2023

Sarah Canterbury
General Counsel
Office of the State Treasurer of West Virginia
State Capitol, Room E-145
1900 Kanawha Boulevard, East
Charleston, WV 25305

Dear Ms. Canterbury:

On behalf of the State Treasurer (acting in his capacity as Chairman of the West Virginia Hope Scholarship Board), you have asked for an Opinion of the Attorney General on whether a county school board or public school may take certain actions against students who are enrolled full-time in public-school programs while also attending privately funded nonpublic-school programs.

We are issuing this opinion under West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advice upon questions of law ... whenever required to do so, in writing, by ... any . . . state officer, board or commission." When this Opinion relies on facts, it depends solely on the factual assertions in your correspondence with the Office of the Attorney General.

Your letter explains that some West Virginia students are engaged in "dual enrollment." In that situation, a student enrolls in and attends a public-school program full-time while also attending a privately funded additional education program outside the time that he or she is attending public school. For example, a dual-enrolled student might attend an in-person private school during the day while attending a virtual public school in the evening. Your letter assumes that each student is meeting all the academic and attendance requirements of his or her public-school program while dual-enrolled.

We understand that some families dual-enroll to qualify their children to receive funds under the Hope Scholarship Act. That act creates state-administered educational-savings accounts for eligible students. Among other ways, a student may become eligible to receive Hope Scholarship funds if he or she is "enrolled full-time and attending a public elementary or secondary school program in this state for at least 45 calendar days during an instructional term at the time of application and until an award letter is issued by the [Hope Scholarship] board." W. Va. Code
§ 18-31-2(5)(B). So after attending their public schools continuously for 45 days, a dual-enrolled student can file a notice of intent to invoke the exemption from compulsory public-school attendance requirements for Hope Scholarship recipients, id. § 18-8-1(m), and apply to the Hope Scholarship program, id. § 18-31-5. Once accepted, the student can unenroll from the public-school program and use his or her Hope Scholarship account to pay for nonpublic school tuition or any other qualified educational expense. Id. § 18-31-7.

Some have objected to this dual-enrollment approach to securing eligibility for Hope Scholarship funds. Your letter reports that at least one public school has informed parents that it will not allow students to enroll in public school if those students are simultaneously enrolled in a nonpublic school program. According to your letter, a parent has also reported that a public school has threatened to mark dual-enrolled students as truant, even though the dual-enrolled students are meeting attendance requirements. The Hope Scholarship Board has also learned that some county school boards plan to adopt policies prohibiting dual enrollment to render a student eligible to receive Hope Scholarship funds.

Your letter thus raises two related legal questions:

(1) Can a county board of education or public school lawfully prohibit a student from participating in a public-school program based on the student's simultaneous engagement in nonpublic education outside of the public-school program?

(2) Can a county board of education or public school lawfully prohibit a student from participating in nonpublic education outside of the public-school program while simultaneously enrolled in and attending a public-school program?

As we explain further below, we answer both questions the same way: "No." Excluding students from public schools merely because they are pursuing additional educational opportunities elsewhere would contravene both the United States and West Virginia Constitutions and state statutes. The same is true of any attempt by county school boards or schools to bar students from participating in nonpublic school programs while attending public schools. And both approaches would undermine the Legislature's intent in establishing the Hope Scholarship program, further confirming that neither is appropriate.

Any local school authorities who are acting or intending to act against dual-enrolled students should stop immediately.

DISCUSSION

Local school authorities have evidently sought to foreclose "dual enrollment" by either barring certain students from attending public schools or preventing public-school students from participating in private educational activities. We address each approach in turn.

I. Prohibiting Dual-Enrolled Students From Participating In Public-School Programs

Local school authorities, like county school boards and public schools, must always ensure that their actions have not violated either "statutes []or the Constitution." Randolph Cnty. Bd of Educ. v. Adams, 196 W. Va. 9, 15 n.7, 467 S.E.2d 150, 156 n.7 (1995). So in considering whether those authorities can bar dual-enrolled students from the public schools, we start by examining the statutory and constitutional provisions implicated here.

The Right to Public Education Generally

Education is particularly important in West Virginia. West Virginia's founders "lived among the ruins of a system that virtually ignored public education and its significance to a free people." Adams, 196 W. Va. at 15, 467 S.E.2d at 156. So they had a special appreciation for the idea that "[e]ducation is the cornerstone of our society." Cobb v. W. Va. Hum. Rts. Comm'n, 217 W. Va. 761, 775, 619 S.E.2d 274, 288 (2005). They thus "gave high priority to public education" when they wrote our Constitution. Adams, 196 W. Va. at 15, 467 S.E.2d at 156.

Perhaps unsurprisingly, then, the Supreme Court of Appeals of West Virginia "has unquestionably found that education is a fundamental right" under the West Virginia Constitution. Kanawha Cnty. Pub. Libr. Bd. v. Bd. of Educ. of Cnty. of Kanawha, 231 W. Va. 386, 402, 745 S.E.2d 424, 440 (2013). And that right is rooted in the express text of our Constitution, where Article 12, Section 1 of the West Virginia Constitution directs that the State will provide "a thorough and efficient system of free schools."

Every student in the State is entitled to a public education. "[A]ll students are entitled to a basic level of education free of budgetary concerns." Adams, 196 W. Va. at 21, 467 S.E.2d at

162. "[A]ll West Virginia children" benefit from that right. Beaver, 248 W. Va. at __, 887 S.E.2d
     at 629. Even a century ago, the Court emphasized how "[e]very child of school age in this state is entitled to attend the public schools in the district in which it actually resides for the time being." Grand Lodge, I.O.O.F., of W. Va., v. Bd. of Educ. of Indep. Sch. Dist. of Elkins, 90 W. Va. 8, 15, 110 S.E. 440, 443 (1922).

Statutory Considerations

Consistent with this exception-free approach, the Legislature has likewise said that public schools must be open to all students of a certain age. West Virginia Code § 18-5-15(a), for example, provides that "[t]he public schools shall be open for the full instructional term to all persons who have attained the [statutorily set] entrance age." (emphasis added). Other provisions speak in similarly blanket terms. See, e.g., W. Va. Code § 18-5-18(a); id. § 18-20-1.

West Virginia courts read these provisions to mean that "the public schools of this State are presumptively open to all persons of proper age." White by White v. Linkinoggor, 176 W. Va. 410, 414, 344 S.E.2d 633, 637 (1986). The only recognized exceptions concern students who are not properly inoculated, those that might be carrying infectious diseases, and those who are so disruptive that they can be properly expelled. But otherwise, "[t]here is no authority for school boards to refuse admittance to children to attend public schools within the age requirements provided by statute." State ex rel. Doe v. Kingery, 157 W. Va. 667, 673, 203 S.E.2d 358, 361 (1974).

In our view, county school boards and local school officials violate these statutes when they bar dual-enrolled students from attending public-school programs merely because those students are also benefiting from educational opportunities elsewhere. None of the few narrow recognized exceptions to universal education apply here. "All persons" and "all students" means just that, all.

Our conclusion adheres to prior interpretations of the statutes from this office and elsewhere. In a 1966 opinion letter, the Attorney General explained how "it is generally held that youths of school age have an absolute right to attend public schools." A second 1966 opinion addressed the converse situation, in which students attending a nonpublic school wished to attend a public school only part-time. The opinion noted again that the right generally admits of no exception. It then concluded: "A child who has elected to attend a private, parochial or approved nonpublic school, and who claims exemption from the statutory attendance requirement in the public school, has no legally enforceable right to compel his enrollment in the public school under a 'shared time' or 'dual enrollment' plan." That conclusion makes sense, when a student elects to remove himself or herself from the public-school system, it may well be that he or she cannot insist that the county board selectively provide some benefits anyway. But that situation, of course, does not track the circumstances you describe, as the dual-enrolled student in your case is assuming both the benefits (continued education from the public schools) and the burdens (continued compliance with the compelled attendance requirements). In other words, the dual-enrolled student is not rejecting public education.

Similarly, in a 2002 interpretation, the State Superintendent of Schools concluded that local school districts could not prevent students from enrolling merely because they pursued other educational activities, in that case, a General Equivalency Diploma.

In short, given what our State's statutes say about who may attend public schools, county school boards and other local school officials would not have authority to prevent dual-enrolled students who are meeting all statutory requirements from attending public schools.

Constitutional Considerations

Statutes aside, we conclude that local actions barring dual-enrolled students from public schools would also be unconstitutional under the West Virginia Constitution. If a local actor "denies or infringes upon a person's fundamental right to an education, then strict scrutiny will apply." Beaver, 248 W. Va. at __, 887 S.E.2d at 629. The school official must then "prove that
[his or her] action is necessary to serve some compelling State interest" and that the action is "narrowly tailored" to serve that interest.

We do not see how effectively expelling dual-enrolled students from the public-school system could satisfy strict scrutiny here. No compelling state interest would be served by denying public schooling to students meeting all the requirements of public enrollment but doing additional work in out-of-school hours. In fact, compelling students to enroll in public schools alone only to have them withdraw 45 days later and then enroll in a nonpublic program would seem more disruptive to those students' progress than merely allowing the students to enroll in the nonpublic programs at the outset. We also have no evidence that students are departing in sufficient numbers to present real challenges to local schools.

And even if these interests were compelling, we do not think that banning students outright is a narrowly tailored remedy. Most obviously, schools could just as easily ask families whether their students intend to withdraw to help plan and budget.

We also conclude that county school boards and public schools would offend the U.S. Constitution if they barred dual-enrolled students from enrolling. Although education is not a fundamental right under the federal constitution, "neither is it merely some governmental 'benefit' indistinguishable from other forms of social welfare legislation." Plyler v. Doe, 457 U.S. 202, 221 (1982). So "[i]f the State, or, in this case, a local entity, is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest." Id. at 230. Preserving financial resources is not a substantial interest in this context. Id. at 229.

Arbitrary Decision-making

Lastly, even if we could overlook the significant statutory and constitutional problems that we have just described, any actions barring dual-enrolled students from public schools could very well constitute unlawfully irrational decision-making. The Supreme Court of Appeals has stressed that county school boards must exercise their discretion "intelligently and not arbitrarily and capriciously." Blessing v. Mason Cnty. Bd. of Educ., 176 W. Va. 32, 34, 341 S.E.2d 407, 409 (1985).

II. Prohibiting Public-School Students From Participating In Nonpublic-School Programs

We must also consider whether local school authorities can prevent their public-school students from engaging in nonpublic educational activities outside of public-school hours.

Statutory Considerations

As the Supreme Court of Appeals has stressed for ages, county "boards of education are 'created by statute with functions of a public nature.'" Hartman v. Putnam Cnty. Bd. Of Educ., No. 21-0765, 2022 WL 9925098, at *2 (W. Va. Oct. 17, 2022). Every county school board thus depends on its enacting statute for its powers. And the board "can exercise no power not expressly conferred or fairly arising from necessary implication." Syl. pt. 2, Napier, 209 W. Va. 719, 551 S.E.2d 362.

We cannot locate any statutory authority that would expressly or impliedly empower local school authorities to prohibit public-student involvement in nonpublic educational activities outside school hours. We do not see that kind of authority in West Virginia Code § 18-5-13. All the powers listed in that statute concern authority over public-school activities and public-school-owned property. None concern private activities.

The closest thing we can find to authority over activities outside the public schools is a local board's authority over extracurricular activities, but that power does not extend far enough to encompass a ban on private, out-of-school-hours educational activities. To be sure, county school boards may "control, supervis[e], and regulat[e] ... all ... extracurricular activities of the students in public secondary schools." W. Va. Code § 18-2-25(a). But "extracurricular" is not generally understood to embrace all educational activities outside the usual public-school curriculum, no matter who conducts them. Rather, "extracurricular activities" usually refer to "voluntary activities sponsored by a school, a county board or an organization sanctioned by a county board or the State Board of Education." Id. § 53-8-1(8) (emphasis added).

Without statutory authority, county school boards and public schools cannot act to bar their students from participating in private educational opportunities outside the hours they are engaged in public schools, including activities that might amount to "dual enrollment."

Constitutional Considerations

We also see constitutional problems with purporting to prevent students from participating in nonpublic educational programs.

Construing the Due Process Clause of the U.S. Constitution's Fourteenth Amendment, the U.S. Supreme Court has repeatedly "recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66 (2000). And in case after case, the Supreme Court has stressed that, out of respect for that right, state and local officials may not prevent students from choosing a specific educational program (outside the public schools) for their children. A century ago, for example, the Supreme Court held that parents' "power ... to control the education of their own," Meyer v. Nebraska, 262 U.S. 390, 401 (1923), meant that the State of Nebraska could not ban the teaching of any language other than English to children younger than ninth grade. A few years later, in striking down Oregon's compulsory school attendance law, the Supreme Court emphasized how the Fourteenth Amendment "excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only." Pierce v. Soc'y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 535 (1925).

Returning to the subject again decades later, the Court expressed special concern for protecting the "traditional interest of parents with respect to the religious upbringing of their children." Wisconsin v. Yoder, 406 U.S. 205, 214 (1972).

Like the federal constitution, "Article III, Section 10 of the Constitution of West Virginia protect[s] the fundamental right of parents to make decisions concerning the care, custody, and control of their children." In re Visitation of L.M., 245 W. Va. 328, 336, 859 S.E.2d 271, 279 (2021).

We do not think that the policies that your letter describes track with any of these constitutional principles and limits. Quite the opposite: "Enforcement" of the kinds of policies that your letter describes "would deprive parents of fair opportunity to procure for their children instruction which they think important and we cannot say is harmful." Farrington v. T. Tokushige, 273 U.S. 284, 298 (1927).

Arbitrary Decision-making

As we've already noted, local school authorities must make reasoned, non-arbitrary decisions on issue likes these. And we do not think that standard can be met when barring students from dual-enrolling in private educational programs.

In the Hope Scholarship Act, the Legislature made the express choice to allow students to depart public schools with state funding in hand so long as they are enrolled in public schools for 45 continuous days. We assume, as we must, that the Legislature already weighed the various benefits and costs of the rule when choosing to implement it. Local school boards and public-school officials must respect that choice.

We are concerned that the actions taken by local officials you've described in your letter are driven by ideological disagreement with the Hope Scholarship Act itself, and are thus designed to make it more difficult for students to benefit from the Act. If our suspicions are right, then the actions you've described are even more unjustified. "[S]chool boards, as creatures of the State, obviously must give effect to policies announced by the state legislature." Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 476 (1982). They cannot "defeat the very purpose of the statute." Fisher v. Jackson, 107 W. Va. 138, 141, 147 S.E. 541, 542 (1929). And parents and students should not be punished merely because they intend to benefit from the Hope Scholarship Act.

But even if local school authorities disagree, that disagreement does not license them to undermine the program, directly or indirectly. We stand ready to act if we suspect that local officials are continuing to do so.

Altogether, county boards of education or public schools may not lawfully prohibit students from engaging in "dual enrollment" or deny students the ability to participate in public-school programs based on those students' simultaneous engagement in private education outside public-school programs.

Sincerely,

Patrick Morrisey
West Virginia Attorney General
Lindsay S. See
Solicitor General
Michael R. Williams
Principal Deputy Solicitor General
Spencer J. Davenport
Assistant Solicitor General

This opinion addresses only students who are enrolled full-time in public schools and who are meeting any attendance and academic requirements the school may impose. Our conclusions here do not necessarily extend to other situations, such as a student who is enrolled full-time in a private school and wants to "dual enroll" in some public-school programs part-time. See generally, e.g., Snyder v. Charlotte Pub. Sch. Dist., 421 Mich. 517 (1984).