Court won’t allow public money to be spent on private schools in South Carolina
COLUMBIA, SC — South Carolina’s law allowing parents to spend tax dollars on private schools is unconstitutional. the highest court of the state ruled on Wednesday.
The 3-2 ruling prohibits paying tuition or other fees with “Education Scholarship Trust Funds,” but it does allow parents to use those funds for indirect personal expenses such as tutoring, textbooks and other educational materials.
Nearly 3,000 students have already received $1,500 each under the program. The court will not require repayment if it was spent on private school tuition or fees. The case was heard by the state Supreme Court in March, well before the money was distributed.
The South Carolina law is part of a nationwide movement. Groups studying the programs report that at least 16 states have some form of vouchers.
The South Carolina case turned on a section of the state constitution that states that “no money shall be paid out of public funds, nor shall the appropriation of the State or any of its political subdivisions be applied for the direct benefit of any religious or other private educational institution.”
Lawyers who think the program is illegal said giving government money to private schools is a direct benefit, even if the program allows students to pay tuition or transportation to attend a public school outside their district.
“A parent who chooses to use a grant to pay his or her child’s tuition is undoubtedly using public money to directly benefit the private school,” Justice Gary Hill wrote in his first major opinion since joining the court a year ago.
Hill’s astute statement followed the history of why South Carolina voters had to amend their state constitution in 1972 to affirm the right to a free public education for all children. This came after state lawmakers had spent two decades trying to prevent black children from attending school with white children, using a variety of maneuvers and proposals, including abolishing public education altogether.
“Our General Assembly knew how to draft and submit to the people an amendment that would allow public funding for private schools, but it didn’t do it,” Hill wrote of lawmakers more than 50 years ago.
Supporters of the now overthrown law said it was important to put the money in a trust fund. The money goes to parents, who can decide for themselves what to spend it on instead of the state government paying for the private schools themselves.
Chief Justice John Kittredge said the ruling fails to take into account the broad authority the South Carolina Legislature has to create policy.
“The literary style of the majority opinion may be attractive, but its underlying logic is anathema to the rule of law,” Kittredge wrote.
The chief justice also proposed other programs that channel private money to public education, such as scholarships paid for with lottery money or the First Steps preschool program.
Hill responded in his decision that these programs have a different structure than the vouchers administered through the trust fund.
Supporters of the law can appeal. They could also try to put a constitutional amendment before voters in 2025 or later that would remove the constitutional provision, but fears that it would be difficult to get a majority vote kept them from trying the first time.
“Families cried tears of joy when scholarships became available to their children, and today’s Supreme Court ruling brings tears of devastation to those same families,” Ellen Weaver, the Republican state superintendent of education, said in a statement. She vowed to work on a way to restart the program.
Republican Gov. Henry McMaster said the state will ask the state Supreme Court to reconsider its ruling because it “could have devastating consequences for thousands of low-income families.”
Senate Republican Leader Shane Massey said the decision contradicts what lawmakers have said in previous court rulings.
“The court changed the rules, and poor children lose,” Massey said in a statement.
The new law authorized vouchers of up to $6,000 for up to 5,000 students per year, which was eventually expanded to about 15,000 students, or about 2 percent of the state’s school-age population. Only families earning less than about $120,000 could receive the aid.
Allowing parents to spend public money on private schools is a two-decade effort by three governors, four House speakers and five superintendents of education in a state where Republicans have continued to expand and consolidate their power.