Updated: Governor, education agency seek rehearing on school choice ruling

Update 10/4/2024

On Friday, Oct. 4, the South Carolina Supreme Court denied Gov. Henry McMaster and the South Carolina Department of Education’s petition for a rehearing. In light of this decision, we urge the state legislature to convene a special session to formulate a plan that ensures students affected by this ruling are able to complete the current academic year.

Gov. Henry McMaster and the S.C. Department of Education have asked the state Supreme Court to reconsider its recent ruling that gutted a 2023 school-choice law allowing public funds to be used for tuition at private schools. 

The South Carolina Policy Council (SCPC) applauds the governor and department for their decision and believes that the high court’s ruling must be revisited and corrected. “We implore the court to reconsider the case, and not leave these students and their families without a path forward” said SCPC CEO Michael Burris. 

Background 

The Supreme Court in a 3-2 ruling said that using state Education Scholarship Trust Fund (ESTF) scholarships for private tuition and fees violated Article XI, Section 4 of the S.C. Constitution, commonly referred to as the "Blaine Amendment.” That section states, “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.” 

The 2023 state law establishing the ESTF provided that starting with this school year, $6,000 scholarships would be available to 5,000 eligible students to pay for private school tuition and fees – or other education expenses, including textbooks, computers, approved tests, tutoring and transportation – with the number of eligible scholarship students increasing to 15,000 in the third and subsequent years. 

The Sept. 11 court ruling currently impacts nearly 3,000 students. For now, it’s unknown whether those students will be permanently banned from using their scholarships to pay for private tuition. 

Dissenting opinion 

As noted in Chief Justice John Kittredge’s dissent, the “facial” challenge brought against the ESTF program “necessarily – and easily – fails to pass muster, without any need to interpret whether the benefits of ESTF are direct or indirect.” 

A facial challenge requires proving that a law is unconstitutional in all conceivable circumstances – a threshold the petitioners failed to meet, according to Kittredge, who was joined in the dissent by Justice John Few. 

Assuming for the sake of argument that using ESTF funds for private school tuition is unconstitutional (though SCPC firmly supports its constitutionality), the rest of the law is constitutional, causing the facial challenge to fail, the dissent contended. 

The dissent stressed that the ESTF program does not directly benefit any religious or other private educational institution. Instead, it allows families to direct state funds toward their children’s education, ensuring taxpayer dollars are used to directly benefit students, not institutions. 

Additionally, the governor's petition points out the majority frequently references the 1971 Hartness case, which the governor contends they mischaracterized as a direct-benefit case. SCPC agrees with the governor and believes the petition for rehearing should be granted given the misinterpretation of Hartness. 

We agree with the dissent, the governor's petition and the Department of Education's petition and believe these factors are sufficient to warrant a reconsideration of the case. We strongly support a legal challenge aimed at reinstating that part of the program and allowing ESTF scholarships to pay for private tuition. 

The need for choice in education 

The educational landscape in South Carolina is in dire need of reform. The South Carolina Education Funding Dashboard reveals that, in FY2021-22 on average, only 34% of students in each district are meeting or exceeding expectations in mathematics, while the percentage for English Language Arts (ELA) stands at 41%. These statistics demonstrate how the state’s public school system is failing children horribly.  

But these outcomes can be improved by expanding access to alternative educational options that encourage competition and drive performance. By empowering families with more choices, the state can foster an environment where student achievement is prioritized. 

The ESTF program empowers families by funding students, not systems, allowing parents to choose the best educational options for their children, regardless of socioeconomic background. 

If the court declines to rehear the case, it should, as outlined in the Department of Education's petition for rehearing “ameliorate the harsh effect of its holdings by delaying the effective date of any injunctive relief until June 1, 2025.”  

Families signed up for the program with the understanding that they would receive their scholarships. Pulling the rug out from under these students would be a serious mistake. 

At SCPC, we will continue to champion policies that fund students over systems and ensure every family in South Carolina can choose the best educational path for their children. Additionally, we urge the South Carolina Legislature to address this issue expeditiously to help these nearly 3000 children impacted by this decision.  

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The South Carolina Policy Council is a Columbia-based, nonprofit, nonpartisan research organization founded in 1986 on the principles of limited government and individual liberties, free markets, and traditional South Carolina values.