A South Carolina law lauded by Republicans that doled out taxpayer money for primarily private school tuition was on Wednesday ruled in large part unconstitutional by the state Supreme Court.
In a 3-2 split decision, Justice Gary Hill wrote in the majority opinion that spending taxpayer money on private school tuition and fees violates the state Constitution's ban on using public dollars for the "direct benefit of private educational institutions."
"The dissent claims our decision 'pulls the rug out' from under the feet of the General Assembly and 'ultimately, the feet of the students the law was designed to serve,'" Hill wrote. "Our duty is to serve the Constitution, the supreme policy of our land. As such, our obligation is not to allow a rug to cover up well marked constitutional ground, no matter how inconvenient that ground may prove to be to otherwise arguably salutary policies. The entire concept behind the Constitution and the rule of law is that the end cannot justify the means."
State schools Superintendent Ellen Weaver, whose office was responsible for administering the money through the Education Scholarship Trust Fund, said the timing of the court's ruling in the middle of the school year "wreaks havoc on the participating students and their families."
Later Wednesday, the state Department of Education clarified how the ruling now impacts families and students. The department said it had halted payments for tuition and fees for private schools and courses and said it would be working with families to communicate options within the program.
In the meantime, education-related expenses, like tutoring, are still allowed through the program.
Gov. Henry McMaster said Wednesday he'll ask the court to reconsider its decision over the state law many Republicans tried unsuccessfully this year to expand.
My full statement in response to the South Carolina Supreme Court's ruling on the South Carolina Education Scholarship Trust Fund Act: pic.twitter.com/ZdCiHLSwNQ
— Gov. Henry McMaster (@henrymcmaster) September 11, 2024
Republicans, like McMaster and Weaver, said the Supreme Court's decision could have ramifications on other state private programs that get taxpayer dollars.
But Hill, in his first major opinion for the high court since his election last year, wrote that none of these programs, such as First Steps and the Palmetto Fellow Scholarship, "employ the same structure" as the law at the center of the court's ruling.
Hill was joined by former Chief Justice Donald Beatty, who retired this year, and retired Court of Appeals Chief Judge James Lockemy, who sat in for Justice Buck James who recused himself due to a conflict of interest.
Now-Supreme Court Chief Justice John Kittredge and Justice John Few wrote in the dissent.
"Nonetheless, the majority opinion today defines the phrase 'direct benefit' so broadly that it swallows any possible meaning of 'indirect benefit' in the process," Kittredge wrote in the dissent. "In doing so, the majority opinion pays lip service to the policy-making role of the legislature."
Under the law passed in 2023, the state offered families meeting certain poverty thresholds up to a $6,000-per-student stipend that could be used to cover tuition, transportation, textbooks, tutoring and other K-12 costs.
The law had an enrollment cap that at its third year limited participation to up to 15,000 students.
House Speaker Murrell Smith, R-Sumter, said in a statement Wednesday that he was disappointed in the court's "narrow reading" of the state Constitution.
"This ruling will not only strip choice from countless families across our state, ... but it also puts in jeopardy current programs that include higher education and preschool that are essential for South Carolinians," Smith said in part.
Across the Statehouse, Senate Majority Leader Shane Massey said he found the majority's opinion "downright offensive."
Hill's ruling detailed in length South Carolina's change to the Constitution in 1972, declaring all children had a right to a public education after years of segregation.
"The sins of the South are well documented. I do not dispute the wrongness with which Clarendon treated the Briggs children and many others. I do not argue that wrongness was limited to Clarendon. You will find no contest to the history or defense of segregationist policies here," Massey said in a statement.
Massey continued, in part, “But what does that have to do with the ESTF program? The court here — a South Carolina court — has effectively adopted the political left’s talking points by likening the ESTF program, any choice program really, to the 'school choice' programs of the segregation era, designed to avoid court-ordered integration."
My statement on today's SC Supreme Court ruling https://t.co/s7eVrdWhAV
— Shane Massey (@shanemassey) September 11, 2024
The three justices ruled Wednesday that the law violates a part of the South Carolina Constitution that bans direct aid to any school other than public schools.
The state Constitution states that "no money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution."
Earlier this year in court, attorney Ramya Ravindran, who represented the plaintiffs, said the money would be going into a "state-controlled trust fund," arguing the program is illegal.
But attorneys representing the governor, the treasurer and Statehouse leaders, including for the state Department of Education tasked with administering the program, told the justices the money would be going to parents first and not directly to the private school itself. Therefore, they argued, it's not unconstitutional.
Three of the justices disagreed.
"After we clear away the window dressing, we can see the Act funnels public funds to the direct benefit of private schools. This is what our constitution forbids," Hill wrote. "We conclude Petitioners have carried their burden of proving beyond a reasonable doubt the portion of the Act that allows tuition payments from public funds for the direct benefit of private educational institutions violates" the state Constitution.
Kittredge, in his dissent, said the majority's ruling ignored the Legislature's policymaking powers.
“The literary style of the majority opinion may be appealing, but its underlying rationale is anathema to the rule of law,” he wrote.
Statehouse leaders didn't immediately say Wednesday whether they intend to push for a change next year to the state Constitution to allow spending taxpayer money on private school tuition.
The Legislature returns to session in January.
Any change would require voter approval via the ballot.
Hill wrote that if lawmakers choose that path, "the Constitution provides a ready method to amend its terms — a method that by our count has been successfully used at least 100 times since 1974, including twice in 2022."
State Rep. Neal Collins one of the few (maybe the only, trying to think who else opposed it) House Republicans to oppose the ESA law. House Republicans tried and failed this year to expand the law. They passed the bill before the court ruled. https://t.co/X8t9awjXfZ
— Maayan Schechter (@MaayanSchechter) September 11, 2024