Parents already enrolled can still use their scholarship for tutoring, just not private tuition
By Seanna Adcox
COLUMBIA — The state Supreme Court has thrown out South Carolina’s fledgling K-12 voucher program as unconstitutional, leaving GOP leaders scrambling on what to tell parents who have already received money.
In a 3-2 split decision, the state’s high court ruled taxpayer dollars can’t be used to pay for private school tuition. For the nearly 3,000 students already enrolled, parents can no longer use their $6,000 for private tuition, though they can still spend it on tutoring, a spokesman for the state Education Department said Wednesday afternoon, Sept. 11, following a review of the ruling.
The program already in place for this school year violates the state constitution’s prohibition against public dollars directly benefiting private schools, writes Justice Garry Hill for the majority.
The decision represents a major — and shocking — upset for South Carolina’s ruling Republicans, who were confident the law two decades in the making would be upheld.
Hill’s opinion concludes by disputing the dissent authored by Chief Justice John Kittredge, whose recent promotion was seen as making the court that already traditionally agreed with the Legislature more conservative.
“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,’” Hill writes. “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.
“The entire concept behind the Constitution and the rule of law is that the end cannot justify the means,” he continued.
Joining Hill are former Chief Justice Don Beatty, who retired this summer, and acting Justice James Lockemy, a retired judge who filled in on the case heard in March.
Their ruling agrees with attorneys for the South Carolina Education Association and NAACP.
“We are grateful that our court has confirmed that public funds are confined for public good,” said SCEA President Sherry East. “We have been anxiously awaiting this decision, and we are happy with the outcome.”
However, she added, “My next fear is that this comes up again in January.”
Patrick Kelly, lobbyist for the Palmetto State Teachers Association (which did not join the lawsuit), called it “a good day for the rule of law in South Carolina.”
However, he said, “We need to do right by those families” already allocated money.
“I don’t have an answer for what right looks like, but what wrong looks like is a child who has started the year at one school not being able to finish the year there,” Kelly said.
The law Republicans celebrated with much fanfare last year culminated an effort that began with then-Gov. Mark Sanford in 2004.
It provided $6,000 scholarships toward tuition, tutoring, and other K-12 school-related expenses. The law capped participation in the first year at 5,000 Medicaid-eligible students. Actual participation was lower: Of the more than 7,900 applicants for this school year, 2,880 K-12 students were eligible and approved.
Advocates thought they found a workaround to the constitution’s ban on tax dollars directly benefiting private education by putting the money into a “trust fund” for parents to allocate. The first $1,500 allotment has already been transferred to each student’s account.
But the majority opinion dismissed the state’s argument that the direct beneficiaries were students, not private schools.
“The tuition benefits directly subsidize the educational function of private schools,” Hill wrote. And “the size of the tuition benefit is significant.”
GOP leaders had no contingency plan for how to handle such a ruling. They developed one on the fly Wednesday.
After the ruling, the company contracted by the state Education Department to create and oversee the online portal that parents use to receive and designate their state aid was told to cease processing all payments for private tuition, said agency spokesman Jason Raven.
The agency is developing a response to parents to explain the ruling’s impact and their options.
No reimbursements are needed for tuition payments already made. Quarterly allotments of $1,500 will continue as scheduled to parents’ accounts. But they must use it for expenses other than private school tuition, Raven said.
As of last week, the agency’s list of approved recipients of the state aid included 259 private schools, 92 tutors, 13 educational therapy services, and 22 public school districts. (The law allowed parents to use the aid to send their child to a public school outside the district where they live, which can charge tuition to cover unpaid local property taxes.) The agency did not immediately provide a breakdown of how many students were using the money to attend a public versus private school.
“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 state Superintendent Ellen Weaver, who before her 2022 election led the group that’s been pushing for the school choice legislation.
“The late timing of the initial filing and subsequent ruling on this case midway through the first quarter of the new school year wreaks havoc on the participating students and their families,” she said in a statement.
Her agency stressed later Wednesday that the ruling did not change student eligibility requirements, indicating parents will continue to be enrolled for future school years. Under the law, eligibility rises to 15,000 students in higher-income homes by year three.
GOP leaders in the House were so confident the ruling would be in their favor, they pushed legislation through that chamber earlier this year that would expand eligibility to all students, regardless of their parents’ income. That bill did not become law, however. Calling it premature, senators never took it up.
House Speaker Murrell Smith, a co-sponsor of the expansion bill, called the ruling disappointing.
The Sumter Republican noted there are similar scholarship programs for college students and poor 4-year-olds. Lottery-backed scholarships can be used at any college in the state, public or private. Similarly, students eligible for state-paid, full-day 4K can attend a public or approved private preschool. But those popular programs have never been challenged and are not part of the court’s decision.
“This ruling will not only strip choice from countless families across our state, hindering educational opportunity from many deserving children, but it also puts in jeopardy current programs that include higher education and preschool that are essential for South Carolinians,” Smith said in a statement.
Gov. Henry McMaster also pointed to those programs as one of the reasons his office will ask the state Supreme Court to quickly reconsider its ruling.
“The Supreme Court’s decision may have devastating consequences for thousands of low-income families who relied on these scholarships for their child’s enrollment in school last month,” he said in a statement, adding he hopes they’ll reverse it “so that the children of low-income families may have the opportunity to attend the school that best suits their needs.”
Kelly, with the teachers’ advocacy group, said the ruling means if legislators want to use tax dollars for private K-12 tuition, they’ll ultimately need voters’ permission.
Last year, the House approved a resolution asking voters whether the state constitution’s ban on taxpayer money flowing directly to private schools should be repealed. The proposal never got a vote in the Senate.
Kelly said legislators’ first step should be expanding students’ choice options in public schools.
“Before we reopen the (Education Scholarship Trust Fund) can of worms, let’s revisit what the Supreme Court is saying is allowed under the constitution,” he said. Allowing parents to enroll their children in the public school of their choice “would open meaningful opportunities to pathways that currently do not exist.”
A bill authorizing what’s considered the public-school version of school choice passed the House last year. That proposal also died with the end of session without a vote in the Senate.
S.C. Daily Gazette reporter Skylar Laird contributed to this report.
Seanna Adcox is a South Carolina native with three decades of reporting experience. She joined States Newsroom in September 2023 after covering the S.C. Legislature and state politics for 18 years. Her previous employers include The Post and Courier and The Associated Press. S.C. Daily Gazette is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
