Historical Record Proves ESAs are Constitutional: The Story of Governor John West and His Rosetta Stone

Education

March 12, 2025

To justify its decision striking down Education Scholarship Trust Fund (ESTF) grants for low- and moderate-income K-12 students in September of last year (2024), the South Carolina Supreme Court presented a Palmetto State history lesson, but it was a perverse one.

In the majority’s peculiar characterizations of South Carolina’s past, the words of arch-racist Ben Tillman’s original 1895 constitution were holy writ, but the text of civil rights pioneer John West’s 1972-73 rewrite seemed scarcely worth their time. The court was amazingly incurious about the origins, legislative history, and intent of the 1895 constitution’s “no aid to private schools” clause and the effect of West’s 1972-73 revision of it.

This is in stark contrast to the thirteen—thirteen—Attorney General opinions over four decades that clearly show legislative intent in both 1895 and 1972-73 are absolutely crucial to understanding the true meaning of the “No Aid Clause” that guides how state trust funds can legally flow to students in private and religious educational institutions.

To understand the 1972-73 ”no aid” clause revision, we must understand the life and legacy of John C. West (1922-2004)—State Senator, Lieutenant Governor, Governor, and United States Ambassador to Saudi Arabia.

In 1963-64, in an act of massive resistance to the integration of American public schools, the South Carolina legislature voted to set up a state grant program to provide white parents with funding to send their children to private schools and then defended the law in court. John West, a State Senator at the time, seemed supportive of the program. But times were beginning to change and so was West. Clemson was integrated (January 1963), as were several Roman Catholic parishes. The March for Jobs & Freedom was held in Washington (August 1963), the Civil Rights Act was passed (July 1964), and a march in Selma went down in history as Bloody Sunday (March 1965). As for the segregationist grant program, it gained initial traction but was struck down repeatedly by federal courts as an end run around federal court orders including Brown v. Board (known in South Carolina as Briggs v. Elliott). That’s when John West rose to the occasion.

In April 1966, while a State Senator, West was named Chair of a Committee to Make a Study of the Constitution of 1895. He continued to lead the Committee after being elected Lieutenant Governor later that year.

In June 1969, what eventually became known as The West Committee released its report after 33 sessions. The 1895 State Constitution was finally on the chopping block. Suffice it to say that the Ben Tillman led 19th Century effort was bigoted—bigoted against Black South Carolinians and bigoted against Roman Catholics. That bigotry lead to a section of the 1895 constitution that banned “direct” and “indirect” state funding for religious schools. These “no aid” measures, aimed at Roman Catholics, were known around the country as “Blaine Amendments.” (There were no Protestant religious schools to speak of in 1895.) The West Committee thought the 1895 Constitutional Convention delegates went too far.

This is what the Committee had to say about that particular section:

The Committee fully recognized the tremendous number of South Carolinians being educated at private and religious schools in this State and that the educational costs to the State would sharply increase if these programs ceased. From the standpoint of the State and the independence of the private institutions, the Committee feels that public funds should not be granted outrightly to such institutions. Yet, the Committee sees that in the future there may be substantial reasons to aid the students in such institutions as well as state colleges. Therefore the Committee proposes a prohibition on direct grants only and the deletion of the word “indirectly” currently listed in Section 9. By removing the word “indirectly,” the General Assembly could establish a program to aid students and perhaps contract with religious and private institutions for certain types of training and programs.

In November 1970 West was elected Governor along with the first three Black members of the South Carolina House of Representatives to serve since Reconstruction. (It would take another 12 years for a person of color to be elected to the South Carolina Senate.) In January 1971, West was sworn in as Governor. In his inaugural address, he said:

The politics of race and divisiveness have been soundly repudiated in South Carolina. We are all one—God's people—and our differences—whether they be age, sex, religion or race—should be considered as blessings and strengths. The time has arrived when South Carolina for all time must break loose and break free of the vicious cycle of ignorance, illiteracy and poverty which has retarded us throughout our history. We can, and we shall in the next four years, eliminate from our government, any vestige of discrimination because of race, creed, sex, religion or any other barrier to fairness for all citizens.

In 1972, Governor West championed a Constitutional Amendment, as recommended by his West Committee, that loosened the Blaine Amendment to allow indirect state support—for students in private and religious schools—but not for the schools themselves. If passed, only direct appropriations to religious and other private schools would be illegal.

So, why take this trip through the life of John West? What does this have to do with the Eidson (2024) school choice decision? Simple. On September 11, 2024, the South Carolina Supreme Court said this:

The dissent [authored by Justices Kittredge and Few] views the West Committee’s Report, which was issued four years before the 1973 amendments were ratified, as the Rosetta Stone that provides the key to the meaning of the ‘direct benefit” phrase in Article XI, Section 4.

If the public meaning of “direct benefit” was somehow murky to the people in 1973, a detour into the mists of history might be appropriate.

[B]y 1973, the people of South Carolina were reaffirming their commitment to public schools and enshrining in the Constitution that they would no longer tolerate public money directly benefiting private schools.

What a bizarre rewriting of our state’s history! Here’s the truth:

The recommendations of the West Committee (1966-1969) were far from “the mists of history.” Over several election cycles [1970, 1972, 1974] the legislature was actively working those recommendations onto General Election ballots, sending them in batches to the voters for approval, with a sizable batch on the ballot on November 7, 1972.
The 1972 amendment that is in dispute in Eidson was lifted verbatim from the “misty” “Rosetta Stone” West Committee report. The original intent of the framers of those words was stated in the West Committee Report: “By removing the word ‘indirectly,’ the General Assembly could establish a program to aid students and perhaps contract with religious and private institutions for certain types of training and programs.”
The Chair of the West Committee was the sitting Governor at the time of the 1972 revisions. West was occupying an office downstairs in the same building that housed the General Assembly. “Mists of history,” indeed! John West’s work was more relevant than ever, and he was still actively fixing our state constitution, now as Chief Executive.
Christian colleges all over the state were in danger of closure and this was a huge concern to Governor West and Attorney General McLeod. Senators advocating for placing the 1972 Amendment on the ballot mentioned this on the floor while the bill was being debated.
South Carolina media was saturated in the Fall of 1972 with pleas from state leaders to vote yes on the Amendment, not “reaffirming their commitment to public schools and enshrining in the Constitution that they would no longer tolerate public money directly benefiting private schools,” but to make sure that students in private and Christian schools could get help with their tuition and that these private institutions would survive.
In his State of the State speech in January 1973 after the passage of the Amendment, Governor West called for more spending for college Tuition Grants.
With the Educational Scholarship Trust Fund (ESTF) legislation (2023), the old segregationism (1963– ) was not reappearing, but being turned on its head. Private schools, which were a haven for whites fleeing integrated public schools in 1963– , are aggressively recruiting minority students in 2024, Catholic Diocese schools in particular.
The “no aid” holdings in both Hartness v. Patterson (1971) which had to do with Tuition Grants for college students, and Durham v. McLeod (1972) which had to do with Higher Education Assistance Loans, were based on the old constitutional language that was revised when the 1973 General Assembly ratified the decision of the voters in 1972. The Attorney General issued an opinion on June 5, 1973, based on the new language finding the grants to private and religious college students constitutional.

We know what the 1972-73 revision to the state constitution was about, who wrote it, and why. All the weird history lessons from the SC Supreme Court can’t change that. The gallery below, with actual documents from the period, is the proof that the court got it wrong on September 11, 2024. After being mentioned in 13 Attorney General opinions over 40 years and countless Supreme Court cases, one thing is clear: the West Committee Report is indeed The Rosetta Stone to understanding the nuances of our evolved constitutional education “no aid” clause.

**What was the 1972 “No Aid” Constitutional Amendment Really About? You decide.**

Option 1: The West Committee Framers of the Amendment (Report 1966-69; Enactment 1970-1974): “…removing the word ‘indirectly,’ [so that] the General Assembly could establish a program to aid students and perhaps contract with religious and private institutions for certain types of training and programs.”

Option 2: South Carolina Supreme Court (2024): “…reaffirming their commitment to public schools and enshrining in the Constitution that they would no longer tolerate public money directly benefiting private schools.”

HERE’S THE HISTORICAL RECORD:

(click on each image for it to be enlarged and to see annotations)

“Investment in Education,” The State, January 25, 1972. The editorial board of The State reacts favorably to Governor West’s State of the State address calling for a constitutional amendment to allow indirect aid to private and religious schools (in this case colleges) which would only be direct aid to students.

“Tuition Aid Bill Passes Senate,” The State, February 10, 1972, on the West Constitutional Amendment proposal clearing its first major hurdle.

“McLeod: Tuition Aid Constitutionally Sound,” The State, May 1, 1972. Attorney General McLeod opines in a speech at Erskine College that passage of the Constitutional Amendment being debated would allow state aid to private and religious students.

“Palmetto League of Women Voters Announces Positions on Amendments,” The Greenville News, October 15, 1972. The League explains that the Constitutional change on the ballot in November would allow scholarships at private schools.

“Court Upholds Tuition Grant [sic] Right,” The State, October 28, 1972. Associated Press story on the State Supreme Court ruling in Durham v. McLeod misunderstands that the court was opining on loans, not grants. This case is even more irrelevant to today as the voters amended the Constitution just days later changing this section entirely.

“Candidate Questionnaire,” Sumter Daily Item, October 30, 1972. Local candidate is supportive of “aiding the students, not the colleges” but also mischaracterizes Durham v. McLeod.

Letter to the Editor, Mary Jenkins, Sumter Daily Item, November 1, 1972. Six days before the 1972 election, Ms. Jenkins does a masterful job explaining the connection of The West Committee to the Constitutional Amendments of 1970, 1972 and 1974. Five amendments in 1970, six on November 7, 1972, and up to six forthcoming in 1974. The West Committee is sounding like a Rosetta Stone.

“Vorhees President: State Money for Church Schools Urged,” Orangeburg Times & Democrat, November 2, 1972. Vorhees College President explains the West Committee/Governor West position on the constitutional amendment coming up in five days and urges South Carolinians to vote yes.

“Student Loans at Religious Colleges Okay,” Sumter Daily Item. June 26, 1973. The Supreme Court of the United States, a bit late, reviews the SC Supreme Court Durham decision of October, 1972 on the former and irrelevant No Aid provision of the 1895 SC Constitution.

“A Report from Governor John C. West,” Gaffney Ledger, December 21, 1973. In his regular newspaper column, the Governor celebrates the effects of the passage of the Constitutional Amendment clearing the way for aid to students in private and religious schools.