CHARLESTON – One of the first decisions by West Virginia’s new Intermediate Court of Appeals on Tuesday could mean that the state’s broad educational savings account program remains on hold going into the new school year.

West Virginia Attorney General Patrick Morrisey announced Tuesday evening that the Intermediate Court of Appeals (ICA) denied a motion by his office to stay an earlier ruling by Kanawha County Circuit Court Judge Joanna Tabit that granted a preliminary and permanent injunction against the Hope Scholarship education savings account program.

“It’s disappointing the Intermediate Court did not see that the lower court’s injunction will undermine the fundamental freedom of parents to choose the best education for their children,” Morrisey said in a statement. “The thousands of families who are set to receive scholarship money from the Act will now be in limbo trying to figure out what’s going to happen to their children’s education.”

Dan Greear, the chief judge for the three-member ICA, recused himself from hearing the case due to previously serving as legal counsel to House Speaker Roger Hanshaw, R-Clay. He helped provide advice during the passage of the bill that created the Hope Scholarship in 2021 and provided additional advice after a lawsuit challenging the Hope Scholarship was filed in January.

Greenbrier County Circuit Court Judge Jennifer Dent was appointed by Chief Justice John Hutchison to hear the case, replacing Greear.

The Hope Scholarship allows parents to use $4,600 of the state school aid formula funding set aside for each student to pay for education programs outside of public schools, such as private school tuition, home schooling and tutoring.

The Hope Scholarship was supposed to start this coming school year. By the end of May, more than 3,146 Hope Scholarship applications had been awarded at a cost of about $14.5 million. The program was only available for public school students, but the program opens up to all eligible public, private and homeschool students by 2026 and could cost as much as $102.9 million.

The lawsuit was filed against Hanshaw; Senate President Craig Blair, R-Berkeley; Gov. Jim Justice; State Treasurer Riley Moore, whose office manages the Hope Scholarship; former state Board of Education president Miller Hall; and State Superintendent of Schools Clayton Burch.

Days before the case was heard in Kanawha County Circuit Court, Hall and Burch filed documents supporting the three West Virginia parents who filed the lawsuit, stating that the Hope Scholarship violated the state Constitution by taking away funding meant for public schools and by taking oversight away from the state Board of Education.

Morrisey said his office is considering its next steps, including an appeal to the West Virginia Supreme Court of Appeals. But if they decline to hear the case or if they move slowly, it could well postpone the Hope Scholarship program until after this coming school year.

“This is an important law that will benefit hard working families, and my office will continue to fight to retain this law,” Morrisey said. “We will now proceed and move to our next legal options–where we believe we should be successful.”