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 (Adams, 1995; Pauley, 1979; many others). Denying enrollment is strict-scrutiny territory. The opinion finds no compelling state interest justifying exclusion of dual-enrolled students who are meeting all academic and attendance requirements, and no narrowly-tailored rationale for outright bans. Federal constitutional law adds a backstop: Plyler v. Doe (1982) and Toledo v. Sanchez (1st Cir. 2006) hold that outright exclusion of children from public schools requires a showing that exclusion serves a substantial state interest. Financial and administrative concerns do not qualify.

A separate arbitrariness ground reaches the same destination: Blessing (1985) and Scott (2005) require school decisions to be reasoned, not arbitrary. Targeting dual-enrolled students while ignoring homeschoolers, private-school students, and any number of other students with outside-school activities looks irrational.

On the second question (banning private programs outside school hours). Boards of education have only the powers the Legislature gave them (Napier, 2001; Bacon, 1996; Shinn, 1894 line of authority). The opinion finds no statute granting authority over students' non-public-school activities. The general powers in § 18-5-13 reach "school activities" and "school property," not private activities. 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.

Constitutional analysis is even more decisive. Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and Yoder (1972) establish a parental right to direct children's education that the state cannot override absent a compelling interest. The opinion notes that the federal courts have not settled the exact level of scrutiny that applies (compare Brach, 9th Cir. 2021, with Herndon, 4th Cir. 1996), but says the conduct here would fail under any standard. Pierce's injunction against "forcing [students] to accept instruction from public teachers only" is the through-line. The West Virginia Constitution Article III, Section 10 provides parallel protection (L.M., 2021).

The opinion also frames a structural concern: the Hope Scholarship Act is itself a legislative judgment that families should be able to use the 45-day window to qualify for state-funded school choice. Washington v. Seattle School District No. 1 (1982) holds that local school boards "must give effect to policies announced by the state legislature" and cannot "defeat the very purpose of the statute" (Fisher, 1929). Local boards trying to nullify the Hope Scholarship through enrollment manipulation contradict their structural role.

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

If you are a parent using or considering dual enrollment

The AG opinion is on your side. A West Virginia public school cannot bar your child for being dual-enrolled, cannot mark your child truant for attending a private program after public-school hours, and cannot ban your child from the private program. If a school is taking these actions, document everything: the school's communications, the dates of any threats, your child's attendance and academic records. The AG opinion is the legal authority you would point to in a complaint to the school board, the State Department of Education, or the Hope Scholarship Board.

If the school escalates (unenrolling your child, marking truant), this is a legal dispute. Consult a West Virginia education attorney. The Hope Scholarship Board may also be a useful resource because the State Treasurer specifically asked for this opinion to address the same problem.

If you are a public school administrator or county school board member

If your district has been considering or enforcing a no-dual-enrollment policy, stop. The AG opinion identifies (1) statutory violations of § 18-5-15(a), (2) constitutional violations of Article XII, Section 1 of the West Virginia Constitution, (3) federal constitutional violations under Plyler, (4) federal parental-rights violations under Pierce and Meyer, and (5) arbitrariness violations of Blessing. That is a remarkably broad set of legal exposure for a single policy.

The AG also warned that the Office "stand[s] ready to act if we suspect that local officials are continuing to do so." That is unusually direct AG language and signals enforcement risk above and beyond private litigation.

If your district has financial or planning concerns about students leaving 45 days into the term, address them with non-coercive measures. Ask families directly whether they intend to withdraw. Smooth the budget cycle to absorb mid-year departures (which the AG notes actually free up funds, not consume them). Talk to the Legislature if the timing rule needs adjustment. Do not unilaterally restrict enrollment.

If you are a private school operator working with dual-enrolled families

Document your students' enrollment status and attendance. If a public school is taking adverse action against dual-enrolled students, the AG opinion is favorable; share it with affected families.

If your operations involve sharing facilities with public schools or coordinating with public school staff, be aware that the AG opinion does not extend to part-time enrollment arrangements (footnote 1). The "shared time" or "dual enrollment" pattern that the 1966 AG opinion declined to require is different from the pattern at issue here. If you are arranging for private-school students to take some public-school courses, that is a different question.

If you are a county prosecuting attorney

This opinion is the answer to local boards considering dual-enrollment restrictions. If a board adopts such a policy, advise clearly that the policy is legally vulnerable across multiple dimensions and that the AG has signaled enforcement intent.

If you are a homeschool parent or an advocate for educational alternatives

The AG opinion endorses parental control over educational choices in unusually broad terms. The reasoning grounded in Pierce, Meyer, and Yoder applies beyond Hope Scholarship cases. The arbitrariness analysis (treating dual-enrolled students differently from homeschoolers or athletes is unjustified) is also useful.

If you are a Hope Scholarship Board member or staff

This opinion confirms the legal architecture you have built. Local interference cannot override the legislative design. If you receive complaints from families about local school resistance, the AG opinion is the authoritative response and may form the basis for further enforcement engagement with the AG's Office.

If you are a West Virginia legislator

The opinion identifies the structural concern: when local school boards resist legislative school-choice policy through enrollment manipulation, the legislative purpose is undermined. If you receive reports of continued local resistance, statutory clarification (express anti-retaliation language tied to Hope Scholarship participation) could close the gap.

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 AG addressed this directly. Students who depart 45 days in actually free up funds (the per-pupil allocation goes elsewhere), so the budget impact is not a withdrawal of resources. Even if it were, Plyler (1982) holds that financial concerns are not enough to justify exclusion.

Q: What if a school administrator argues this is about academic integrity, not budget?
A: The opinion finds no academic-integrity rationale that justifies exclusion. Dual-enrolled students who are meeting all academic requirements are by definition not failing the school's academic standards.

Q: What enforcement options does the AG have?
A: The opinion does not specify, but the closing language ("We stand ready to act") signals AG-Office willingness to engage directly. Practical options likely include enforcement letters, public statements, and amicus participation in private litigation.

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: If anything, the religious nature of the private program strengthens the parental-rights claim under Yoder (1972) and Pierce (1925). The opinion notes that religious-education arguments would trigger a higher level of scrutiny even in courts that apply more permissive standards generally.

Background and statutory framework

The Hope Scholarship Act (W. Va. Code § 18-31-1 et seq.) creates education savings accounts for eligible West Virginia students. Eligibility requires either prior public-school enrollment or full-time public-school attendance for 45 continuous days during an instructional term. Once eligible, families apply (§ 18-31-5), receive an award, exempt themselves from compulsory attendance (§ 18-8-1(m)), and use the account for qualified educational expenses (§ 18-31-7).

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. Pauley v. Kelly (1979) established the modern framework; Adams (1995) and Beaver (2022) have reinforced it.

The federal framework adds parental rights as a further constraint. Meyer v. Nebraska (1923) struck down a ban on teaching foreign languages to young children. Pierce v. Society of Sisters (1925) struck down compulsory public-school-only attendance. Yoder (1972) protected Amish parents' right to remove children from compulsory schooling at age 16. The line is not free of complication: courts have wrestled with what level of scrutiny applies. The opinion takes the position that the conduct here would fail under any standard.

The board-of-education-authority framework comes from Napier (2001) and earlier decisions. Boards exercise only powers expressly conferred or fairly implied. McCallister (1992) holds that ambiguity is resolved against authority. The opinion finds no source of authority for banning students from private outside-of-school activities.

The arbitrariness doctrine under Blessing (1985) and Scott (2005) requires school decisions to be reasoned. Targeting dual-enrolled students while ignoring other students with outside-of-school commitments fails the basic rationality test.

Finally, the opinion's structural argument grounded in Washington v. Seattle School District No. 1 (1982) and Fisher v. Jackson (1929) asserts that local school boards cannot defeat the legislature's school-choice judgment through enrollment manipulation.

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)
- W. Va. Code St. R. §§ 126-26-3.1, 126-42-12 (extracurricular policy)

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

Leading cases:
- Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979)
- 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. Society of Sisters, 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 (2001)
- 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).