South Carolina’s top education leader vows to defend ESA program after state high court strikes it down

This article by Lisa Buie was originally published on the Next Steps Blog. In it, she quotes Palmetto Promise Institute President Wendy Damron.

 

The big story: Nearly 3,000 low-income students and their families now find themselves scrambling for education options a month into the new school year after the South Carolina Supreme Court tossed out the state’s fledgling education savings account program as unconstitutional. 

The state Department of Education announced on Wednesday afternoon that it has halted all tuition and fee payments being directed to private schools and courses. However, a department spokesperson said the actions relate only to payments made on or after Sept. 11 and that families would not have to return funds already spent. Also, all other allowable expenses would continue to be paid.

“The Department will work closely with parents to assess viable alternatives for their children if continued attendance at their current school is no longer an option, thanks to this lawsuit and subsequent ruling,” department spokesperson Jason Raven said.

Raven added that the department will “do everything in its power to work with the Governor, General Assembly, and impacted schools to support the low-income families who are the victims of this ruling and will communicate with them regarding options that remain within the Education Scholarship Trust Fund program.”

State Education Superintendent Ellen Weaver blasted the timing of the lawsuit, which the state NEA affiliate filed six months after the law’s passage and said the ruling “wreaks havoc” on families. 

  “Families cried tears of joy when the scholarship funds became available for their children, and today’s Supreme Court ruling brings those same families tears of devastation,” said Weaver, a school choice champion. “While I respectfully disagree with the holdings of the majority decision, I remain committed to working with the governor and the General Assembly to find a way forward to support these students and educational freedom for all South Carolina families. These students deserve better, and I will not rest until they get it.” 

The ruling: The 3-2 decision, handed down Wednesday, ruled that taxpayer dollars can’t be used to pay for private school tuition. It relied on the state’s Blaine Amendment, which keeps popping up as the battle for education choice shifts from federal to state courts in the wake of landmark U.S. Supreme Court rulings. The wording varies by state, with South Carolina’s version stating that taxpayer dollars cannot directly benefit private schools. At issue was what qualified as a direct benefit.

Specifically, the court struck down broad sections of the Education Scholarship Trust Fund (ESTF) – a program created last year by lawmakers and administered by the South Carolina Department of Education, which provides roughly 5,000 academic scholarships totaling $6,000 each for eligible K-12 students. 

Justice Garrison Hill wrote for the majority that the program already in place for this school year violates the state constitution’s prohibition against public dollars directly benefiting private schools and said he found the arguments in support of the program’s constitutionality were “unconvincing.”  

“They read our Constitution as allowing public funds to be directly paid to private schools as tuition as long as the funds are nudged along their path by the student, who may, through an online portal, choose to use the funds that way,” Hill wrote, with former Chief Justice Donald Beatty and acting Justice James Lockemy concurring. 

The other side: In a scathing dissent, newly installed chief justice John Kittredge, backed by justice John Few, wrote that “the majority opinion pays lip service to the policy-making role of the legislature.” 

“Our constitution allows the legislature — and only the legislature — to make this policy decision,” he wrote. 

Kittredge added that the funds flow through the state treasury to a third-party trust fund, then to a family’s account, which parents can direct to the school of their choice, which includes some private schools. 

“The majority opinion finds this is a direct benefit to the private school, that is, that public funds are ‘immediately’ going from the State Treasury to the private school,” he wrote. 

Kittredge also disputed that the program, which includes $30 million of the state’s $14 billion education budget, has harmed district schools, noting that the legislature has steadily increased funding each year and approved a record amount this past year.  

School choice leaders across the nation criticized the decision and expressed sympathy for the participating families. 

 “Today, a court overturned a duly passed piece of legislation on the basis of an indefensible misreading of the words of our State Constitution,” said Wendy Damron, president of Palmetto Promise Institute, a think tank that supports education choice. “It is unconscionable that the Supreme Court would rip away these scholarships from children and families counting on the funds for their education this year.” Damron encouraged state education officials to appeal. 

Neal McCluskey, director of the Cato Institute’s Center for Educational Freedom, responded in a post on X: “Sad news for South Carolinians.” He added that Cato filed a brief in the case “making clear, among other things, that by empowering diverse families to freely seek what they think is right, choice is important to defusing social conflict.” 

Next steps: Gov. Henry McMaster said the state would ask the court to “expeditiously reconsider” its ruling due to concerns about effects it may have on other programs. 

Fallout for pre-K and college programs: The ruling comes despite the existence of other state programs that have allowed pre-kindergarteners and college students to use public funds at private schools, which choice advocates say supports the constitutionality of the K-12 ESA program.  The pre-K program “is clearly in violation of the state constitution based on the school choice ruling,” Shawn Peterson, president of Catholic Education Partners, noted in an X post to point out the double standard.  

Possible long-term solution: Jason Bedrick, a research fellow at the Heritage Foundation suggested that the legislature act quickly and examine other funding methods such as a tax credit program in the wake of the court’s “flawed decision.”