For the second time in four years, the state Supreme Court has struck down a plan by South Carolina lawmakers to bypass the state constitution’s ban on direct public support for private schools.
A 2020 decision was unanimous. Wednesday’s 3-2 ruling was no less of a reprimand.
The ruling leaves nearly 3,000 students at new schools in the lurch, but any politician looking to blame the justices should look in the mirror instead. They have no one to blame but themselves.
They should know better. More than 1 in 4 state lawmakers are lawyers, and books have been written about the many times their forebears got caught trying to evade the requirements of the state constitution since it mandated a free public school for all South Carolina’s children in 1868.
Lawmakers thought their new scheme to create a trust by which to funnel public funds to private schools — without, as the Supreme Court noted, naming a trustee — would change the nature of public money, but the justices didn’t buy it.
They called the ruse “unconvincing” and a “veneer.”
Justice D. Garrison Hill cut to the chase in his majority opinion: “Once we apply the plain and popular meaning of ‘direct benefit’ to the Act, the presumption of constitutionality withers.”
The ruling has upended plans already underway to give 2,880 students $6,000 scholarships this year to leave their public schools. Supporters and low-income families benefiting from the program have called it crucial for a more flexible, customized education. But Hill wrote that while using public funds for certain types of contracts, training and programs with private schools is allowed, using tuition payments for private institutions is not: “Our decision draws the line.”
The ruling creates immediate questions about what will happen to “scholarship” recipients who have already obtained their first $1,500 installment and enrolled in new schools. These families don’t have much means or many opportunities as is; the family income of these beneficiaries can’t be more than 200% of the federal poverty level, which is $62,4000 for a family of four. The ruling also creates longer-term questions about additional private choice programs in South Carolina.
State Superintendent of Education Ellen Weaver said the decision “wreaks havoc” on families who are still counting on $4,500 in more state aid this school year. Nearly half these students — 48% — are Black, 30% are white, 6.5% are Hispanic or Latino, and 10% are in other minority groups or multiracial, according to state data reported in the South Carolina Daily Gazette.
Weaver said she would work with Gov. Henry McMaster and the General Assembly “to find a way forward to support these students and educational freedom for all South Carolina families.”
McMaster said the ruling could have “devastating consequences” for the families who “relied on these scholarships for their child’s enrollment in school last month” and may also “jeopardize the future enrollment of tens of thousands of students in state-funded four-year-old kindergarten programs and state-funded scholarships utilized by students at private colleges and HBCUs.”
He said the state would ask the Supreme Court to reconsider its ruling.
Given the clarity of the constitution and the rarity of reconsideration, it seems to be a long shot. If Weaver, McMaster and members of the General Assembly want to devise a program that will withstand court scrutiny, they should be working on it now — and working with lawyers who have a better grasp of constitutional law, but their first priority should be a fix for the 3,000 families with uncertain futures. And when lawmakers reconvene in January, they should also revisit open public school enrollment, which is currently restricted in South Carolina. Choice is choice.
They could also heed Alexander Hamilton, who wrote in The Federalist No. 78: “The Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
South Carolinians know well the state’s tortured past with trying to get around the constitution, especially as it relates to integration: An experiment with separate schools for Black and white students was mandated in the state constitution in 1895 and mostly accepted until the 1940s when several Black families in Clarendon County asked for a school bus like the 30 their white neighbors had so their children didn’t have to ford streams and walk miles to school each day.
Walter Edgar’s “South Carolina: A History” records that the school board chair replied, adding a racial slur, “We ain’t got no money to buy a bus for your … children.” History records that in 1949, that school district spent $179 for each White student and $43 for each Black student.
In 1950, Thurgood Marshall filed a lawsuit on behalf of 21 parents of those Black students to challenge South Carolina’s “separate but equal” public school system. Briggs v. Elliott later folded into Brown v. Board of Education, and we all know the rest. But did you know the General Assembly’s response was to ratify the repeal of the state’s constitutional mandate to provide public schools and repeal the state’s compulsory attendance law? As Wednesday’s ruling noted, “It was unclear how they envisioned South Carolina’s children would learn to read and write.”
In 1963, the General Assembly passed Act 297 to provide publicly-funded tuition for students in South Carolina to attend private school. It was another way to “foil integration,” as Hill wrote, and it ended in 1968 after judges saw it “for what it was, an attempt to evade constitutional law.”
The latest court ruling will force lawmakers to reconsider their options, but it lays out a clear way to send private schools public aid. It’s to ask the public to amend the constitution, an approach that has been successfully used at least 100 times since 1974 and twice in 2022 alone.
If lawmakers want to pursue their private choice plan and believe the public will support it, they should put it to such a vote. If they don’t, they should move onto other issues. There are plenty.
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