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COLUMBIA — The South Carolina Supreme Court has thrown out the state’s fledgling K-12 voucher program as unconstitutional, leaving GOP leaders scrambling on what to tell parents who have already received money.
In a 3-2 split decision, the state’s high court ruled taxpayer dollars can’t be used to pay for private school tuition. What that means for the nearly 3,000 students already enrolled is uncertain. The state Education Department had no immediate answers.
The program already in place for this school year violates the state constitution’s prohibition against public dollars directly benefiting private schools, writes Justice Garry Hill for the majority.
The decision represents a major — and shocking — upset for South Carolina’s ruling Republicans, who were confident the law — two decades in the making — would be upheld.
Hill’s opinion concludes by disputing the dissent authored by Chief Justice John Kittredge, whose recent promotion was seen as making the court that already traditionally agreed with the Legislature more conservative.
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“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.’ 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,” Hill writes.
“The entire concept behind the Constitution and the rule of law is that the end cannot justify the means,” he continues.
Joining Hill are former Chief Justice Don Beatty, who retired this summer, and acting Justice James Lockemy, a retired judge who filled in on the case.
Their ruling agrees with attorneys for the South Carolina Education Association and NAACP.
“We are grateful that our court has confirmed that public funds are confined for public good,” said SCEA President Sherry East. “We have been anxiously awaiting this decision, and we are happy with the outcome.”
However, she added, “My next fear is that this comes up again in January.”
The law Republicans celebrated with much fanfare last year ended an effort that began with then-Gov. Mark Sanford in 2004.
It provided $6,000 scholarships toward tuition, tutoring, transportation and other K-12 school-related expenses. The law capped participation in the first year at 5,000 Medicaid-eligible students. Actual participation was lower: Of the more than 7,900 applicants for this school year, 2,880 K-12 students were eligible and approved.
Advocates thought they found a workaround to the constitution’s ban on tax dollars directly benefiting private education by putting the money into a “trust fund” for parents to allocate. The first $1,500 allotment has already been transferred to each student’s account.
But the majority opinion dismissed the state’s argument that the direct beneficiaries were students, not private schools.
“The tuition benefits directly subsidize the educational function of private schools,” Hill wrote. And “the size of the tuition benefit is significant.”
GOP leaders had no contingency plan for how to handle such a ruling. Unanswered questions include whether the state needs to be reimbursed, and if so, whether the private school or parent would have to pay.
“Families cried tears of joy when the scholarship funds became available for their children, and today’s Supreme Court ruling brings those same families tears of devastation,” said state Superintendent Ellen Weaver, who before being elected led the group that’s been pushing for the school choice legislation.
“The late timing of the initial filing and subsequent ruling on this case midway through the first quarter of the new school year wreaks havoc on the participating students and their families,” she said in a statement.
GOP leaders in the House were so confident the ruling would be in their favor, they pushed legislation through that chamber earlier this year that would expand eligibility to all students , regardless of their parents’ income. The bill did not become law, however. Calling it premature, senators never took it up.
House Speaker Murrell Smith, a co-sponsor of the expansion bill , called the ruling disappointing.
The Sumter Republican noted there are similar scholarship programs for college students and poor 4-year-olds. Lottery-backed scholarships can be used at any college in the state, public or private. Similarly, students eligible for state-paid, full-day 4K can attend a public or approved private preschool. But those popular programs have never been challenged and are not part of the court’s decision.
“This ruling will not only strip choice from countless families across our state, hindering educational opportunity from many deserving children, but it also puts in jeopardy current programs that include higher education and preschool that are essential for South Carolinians,” Smith said in a statement.
Gov. Henry McMaster also pointed to those programs as one of the reasons his office will ask the state Supreme Court to quickly reconsider its ruling.
“The Supreme Court’s decision may have devastating consequences for thousands of low-income families who relied on these scholarships for their child’s enrollment in school last month,” he said in a statement, adding he hopes they’ll reverse it “so that the children of low-income families may have the opportunity to attend the school that best suits their needs.”
This article first appeared in the South Carolina Daily Gazette , a sister site of the Nebraska Examiner in the States Newsroom network.
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