SC Supreme Court strikes down voucher scheme giving tax dollars to private schools

We will not "allow a rug to cover up well marked constitutional ground," said the ruling

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The South Carolina Supreme Court struck down the heart of the state’s voucher program, saying in a welcome 3-2 decision last week that using taxpayer dollars to fund private (usually Christian) school tuition violated the state’s Constitution.

Rosary beads on money (image via Shutterstock)

All of this revolves around South Carolina’s version of a “Blaine Amendment.” That’s a reference to a failed amendment to the U.S. Constitution, first proposed in 1875, that would have banned federal money from going to religious schools. Even though it didn’t pass, 37 states have adopted their own versions of the law.

South Carolina is one of them. Article XI, Section 4 of the state’s Constitution says public money cannot be used for the “direct benefit of any religious or other private educational institution.”

But in 2023, Republican lawmakers passed the Education Scholarship Trust Fund Act, which gave families up to $6,000 to send their kids to private schools (or public schools outside their zoned districts), as long as the families met certain requirements. Ultimately, however, taxpayer dollars would be funding private school education.

Republicans tried to argue that was legal in a variety of ways—The vouchers aren’t a “direct” benefit because we’re giving money to the families! There’s a state-sponsored trust fund involved!—but the Court’s majority didn’t buy any of those excuses:

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. 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 Article XI, Section 4.

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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 to otherwise arguably salutary policies. The entire concept behind the Constitution and the rule of law is that the end cannot justify the means.

Patrick Kelly, director of government affairs for the Palmetto State Teachers Association, put it more bluntly:

"The court didn't say this, but basically they have made the argument that if it walks like a duck and it quacks like a duck, it's a duck — it's still public funds," Kelly said. "And those public funds, if directed to a private school, are directly benefiting the private school. And the constitution says you cannot do that. The General Assembly cannot do that."

Not only is the decision the correct one, it won’t upend the lives of families who already used this year’s vouchers because they’re not being asked to return the money. Roughly 3,000 students were given about $1,500 each under the program—the law theoretically allowed nearly 15,000 students to receive up to $6,000 each—and they can still use it to pay for transportation to public schools outside their region. If they’re at a private school, that money can also be used to pay for tutoring or textbooks. But families who want to continue sending their kids to a private school, religious or otherwise, will have to find their own way to pay for it moving forward—just as it should be.

Also worth noting? The majority decision highlighted why the Blaine Amendment was even added to the state’s Constitution in 1972: to stop racists, who were using tax dollars to send their kids to private segregated schools.

This is great news for people who care about public education. As I’ve said before, the argument in favor of “school choice” is that it allows parents to choose the best education for their kids, and if that happens to be a private or religious school, so be it. But the reality is that many students receiving this money are already attending private schools (and don’t need the cash) and public schools end up losing funds that they sorely need. That’s especially concerning since public schools, by definition, are for everyone while private schools can choose to reject students with special needs, students who have same-sex parents, students who may need additional help, etc. Vouchers are nothing more than gifts for people who often don’t need the financial help and for private schools that aren’t popular enough to exist on their own.

Yet these voucher programs are gaining popularity in many states, to the tune of billions of dollars.

In some of those states, like Arizona and Ohio, the programs are blowing a giant hole in the budget while making public education worse.

That decreased funding disproportionately affects schools in low-income neighborhoods and students of color specifically, which has a ripple effect throughout their communities. (And after making public schools worse, conservatives often use that to justify even more money going to private schools.)

Instead of working to improve public schools, lawmakers in South Carolina chose to make them worse. Earlier this year, a proposed bill to expand the voucher program eliminated any family income cap as well as a cap on how many students could take advantage of it. That same bill would get rid of state audits for private schools receiving the funds and eliminate standardized testing that would have allowed people to directly compare the education kids were receiving at private and public schools. In short, private schools would be subject to even less transparency.

Thank goodness the state’s Supreme Court reversed this mistake before everything got significantly worse. It wasn’t entirely shocking because the same court, in 2020, blocked the Republican governor from using $32 million in COVID relief money to fund scholarships to private schools. (A separate lawsuit prevented lawmakers from giving $1.5 million to a Christian school as part of the state’s 2022-2023 budget.)

That doesn’t mean this fight is over, though. It’s always possible for Republicans to pass a different law to circumvent the state Constitution. It’s also an option to ask voters if they’d like to remove the relevant part of the Constitution through a ballot measure. But there’s a reason the latter option wasn’t really up for consideration: Voters tend to push back when lawmakers ask them if they’d like to destroy public education.

You can still expect Republicans to try something. After all, as the Associated Press noted, destroying public education is their passion:

Allowing parents to spend public money on private schools has been a two-decade effort that ran through three governors, four House speakers and five education superintendents in a state where Republicans have been consolidating and expanding their power.

Gov. Henry McMaster has already said he will request that the Court “expeditiously reconsider this decision.”

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