School choice opponents in West Virginia recently turned to an unlikely place for help stopping school vouchers: Florida.
With the U.S. Supreme Court slamming the door shut on opponents seeking to defeat school vouchers on First Amendment and state “Blaine Amendment” grounds, Florida’s notorious Bush v. Holmes case offers the only remaining avenue.
In Florida, school choice opponents threw everything but the kitchen sink at a small private scholarship program that was 94% Black or Hispanic. The only arguments to stick were: 1) the state constitution permits only the funding of public schools; and 2) any funding to the contrary harms public schools, the primary responsibility of the state.
The first argument required misapplying a legal concept called expressio unius est exclusio alterius (the expression of one thing is the exclusion of the other), and the second simply speculated on the financial harm with zero evidence in support.
The legal reasoning was so poor that even the Florida Supreme Court rejected it in 2001 before a surprise reversal nearly five years later. That 2006 ruling was controversial and widely panned, with the Florida Law Review concluding the “case was arguably decided on the basis of policy rather than precedent.”
Plaintiffs in West Virginia, which include the union funded Education Law Center, make virtually the same dubious legal reasoning in Beaver v. Moore to stop the state’s new Hope Scholarship program. (Full disclosure: Step Up For Students, which operates this blog, was contracted to help facilitate the Hope Scholarship in West Virginia.) But they are having to do so with a significantly weaker education clause.
Article XII, Section I of the West Virginia Constitution states: “The Legislature shall provide, by general law, for a throughout and efficient system of free schools.”
Meanwhile, Florida’s education clause makes education a “paramount duty” and requires the Legislature “to make adequate provision” for a “uniform efficient, safe, secure and high quality system of free public schools … ”
In both states, plaintiffs argue the doctrine of expressio unius applies — that is, the constitutional requirement to fund public schools means no other option can be funded. However, not only does West Virginia’s weaker constitutional language make that argument harder to apply, but the plaintiffs strain the meaning of the term.
For example, a constitution might declare: “No dogs allowed.” In this case, the law specifically bans dogs, but is silent about cats and other animals. Expressio unius would find cats and other animals are legal. If the government didn’t want you to have other animals, they could have been less specific with the restriction and stated “No animals allowed” instead.
Nothing within either state constitutions suggests that expressio unius doctrine applies, as neither contains language suggesting there might be a prohibition or restriction of any kind.
“West Virginia’s Constitution has no prohibition against funding other options,” said Joe Gay, an attorney for the Institute for Justice, a nonprofit public interest law firm. “It’s the common sense reading of the language.”
The Institute for Justice is currently representing two families who have been awarded Hope Scholarships in West Virginia.
The second problem facing the plaintiffs is the unintended consequences of misapplying expressio unius.
Irina Manta warned of similar unintended consequences in a scathing critique of Bush v. Homes in the St. Louis University Law Journal, where she argued that misapplying the doctrine could end up invalidating the funding of public libraries and more.
The unintended consequences appear more dangerous in West Virginia. Its constitutional framers sought to fund a system of free schools, which in constitutional debates were specifically mentioned to be common schools, or what we call primary schools today (see also here, here, here and here).
In fact, the only other school type West Virginia’s framers specifically mention are “Normal Schools,” in Article XII, Section 11. Normal Schools at the time were high schools whose purpose was to train primary school teachers.
Why specifically spell out this form of high school in the state constitution if high schools were already included in the “free schools” required in Article XII, Section 1? The plaintiffs strained understanding of expressio unius would require us to find high schools unconstitutional as well.
Making matters worse, West Virginia’s constitution makes no mention of vocational schools, colleges or universities. Does the absence of any mention of these educational options within the state constitution make them unconstitutional as the plaintiff’s legal reasoning would imply?
Unlike the U.S. Constitution, which grants the federal government limited powers, “state constitutions establish a constitutional minimum, not a maximum,” argues Gay. In other words, West Virginia’s Legislature doesn’t need direct permission from the constitution to fund colleges, universities, high schools or even school vouchers.
But if anyone doubts West Virginia’s constitutional authority to fund high schools, colleges, universities, schools of education founded after 1872 or even school vouchers, one can look to Article XII, Section 12, which states the legislature shall provide “for the organization of such institutions of learning as the best interests of general education in the State may demand.”