SC Supreme Court says again no public money for SC private schools

What part of “No, you cannot spend public money on private schools” do you not understand?

That was, in non-legal language, what the South Carolina Supreme Court on Wednesday said to Gov. Henry McMaster when the high court handed down — for the second time in nine weeks — a unanimous ruling against McMaster’s effort to spend $32 million in tax dollars on state private schools.

Wednesday’s ruling was a follow-up to the state Supreme Court’s Oct. 7 also unanimous decision in the same case, where the justices ruled for the first time that the S.C. Constitution prohibited the spending of public money for private schools.

The case before the court each time involved McMaster’s effort earlier this year to designate $32 million in federal COVID-19 relief funds to go to pay one-time tuition grants of up to $6,500 per student for about 5,000 private school K-12 students across the state. McMaster had contended the money benefited the students and their families, not the schools.

At a Wednesday afternoon press conference, the governor said he was “very disappointed” with the court’s decision.

“Most importantly, I’m disappointed for the 5,000 or so students from working and low-income families, who will be denied any financial aid from the CARES Act through the SAFE Grant program that we initiated,” McMaster said. “Many of these parents are barely able to scrimp and save enough money to pay for their child’s tuition in independent Christian and other private schools. They do it to provide the type of education, environment and instruction that they feel best suits their child’s unique needs.”

Under federal laws, the money must be spent by the end of the year. McMaster said there is a contingency plan to ensure the money gets spent before then on education needs.

He could not, however, detail what that contingency plan is.

Last July, McMaster’s effort to give the $32 million to private school students was challenged by an Orangeburg County educator Thomasena Adams and other plaintiffs, who filed suit against the governor in that county saying the governor’s action was banned by the S.C. Constitution. Adams and the other plaintiffs wanted the money to go to public schools.

The Supreme Court took up the issue and in October ruled in favor of the the educator.

After McMaster lost that case, his attorneys filed what is called a “motion for reconsideration,” which asked the Supreme Court to review its decision and look with a new eye at issues raised it the case.

Among the parties joining McMaster in its bid to have the Supreme Court reverse itself was the Trump administration’s Department of Justice, which filed a brief saying the U.S. Department of Education had concluded that it is, in fact, lawful to spend coronavirus relief funds on private and independent schools.

In its Wednesday filing, the State Supreme Court said it had considered all the filings, including the one from the Justice Department, and stood its ground.

“Rather, no matter the circumstances, the Court has a responsibility to uphold the Constitution,” the high court wrote in its opinion, citing the emergency situation caused by the pandemic.

“Based on the foregoing, we hold the Governor’s allocation of $32 million in GEER (Governor’s Emergency Education Relief) funds to support the SAFE (Safe Access to Flexible Education) Grants Program constitutes the use of public funds for the direct benefit of private educational institutions within the meaning of, and prohibited by, Article XI, Section 4 of the South Carolina Constitution.”

Basically, the high court said, that while McMaster had discretion to distribute the GEER funds for emergency relief funds, his discretion was not so broad that he could give out the money to help private schools. The GEER funds come into the State Treasury and are converted to South Carolina public money, and so cannot be spent to help private schools, the justices said.

The opinion was written by Chief Justice Donald Beatty and joined by associate justices Kaye Hearn, John Kittredge, John Cannon Few and John Geathers, a Court of Appeals judge sitting in for Justice George “Buck” James, who recused himself.

Skyler Hutto, the lead attorney for Adams, said, “The judicial system has given this issue careful consideration at every turn, and the Court’s decision today reaffirms its decision from October. Al Nickles (Hutto’s co-counsel) and I have been grateful for the opportunity to represent public schools and teachers throughout this process.”

Because of court’s decision, $2.4 million out of the same pot McMaster announced in July for private colleges, including for South Carolina’s historically Black universities, also was frozen. McMaster said it’s his hope that that money can be resolved somehow.

“And resolved... perhaps by a legal action by those institutions,” he said.

Late Wednesday, Scott Price, executive director of South Carolina School Boards Association, issued this statement:

“The Supreme Court’s opinion, affirmed today, is an unequivocal affirmation of our state constitution’s prohibition of the use of public k-12 education dollars, allocated in any form, to private schools. SCSBA has consistently advocated for our state to focus its limited public resources and all of its effort to ensuring every student attends a public school that any parent would choose for their child. South Carolina’s students deserve no less.”

Maayan Schechter contributed to this report.

This story was originally published December 9, 2020 at 12:43 PM with the headline "SC Supreme Court says again no public money for SC private schools."