Add South Carolina to the list of states whose education choice scholarship programs are facing court challenges.
The state teachers’ union, along with the state NAACP and six parents, has asked the state Supreme Court to overturn South Carolina’s new private school law, which the state General Assembly approved six months ago. S.39 established an education trust fund that grants $6,000 to children from families with household income levels at or below 200% of the federal poverty line. Qualified families can use the money to pay for qualified education expenses, including private school tuition, public school services, tutoring or curriculum.
Plaintiffs argue the program violates the state Constitution’s prohibition against the direct funding of private and religious schools. They also say the program violates the constitutional requirement that the state provide “a system of free public schools open to all children,” allocates public funds without a sufficient public purpose; and impermissibly expands the constitutionally defined authority of the state superintendent of education, whose Department of Education will administer the program.
Supporters of the newly enacted program, including the Palmetto Promise Institute, say it is “clearly constitutional,” just like existing state programs that give funds to students attending private higher education institutions and pre-kindergarten programs.
“All students from pre-kindergarten through college, particularly those of low and moderate income, deserve the right enjoy private education options where public options may not fit their needs,” the think tank posted on X, formerly known as Twitter.
State Education Superintendent Ellen Weaver supported school choice during her 2022 campaign and is named as a defendant. She promised to “fight tooth and nail” to give children access to an education that best fits their needs.
“Opponents of expanding opportunity couldn’t win at the ballot box, lost in the legislature and now are asking the courts to overrule the will of the people,” she said in a statement. “It’s not surprising, but it’s disappointing.”
Echoes of Alaska: The plaintiffs’ main argument is like one being made about an Alaska program that is facing a court challenge. Plaintiffs in that state say an allotment program, which functions like an education savings account, violates Alaska’s constitutional ban on programs that directly benefit private institutions. Attorneys for the Institute for Justice, which is representing three Alaska parents and defending the program, argue that the funds directly benefit only the families, who can choose from among a wide variety of options. However, a broad interpretation that bars the program based on the possibility of families spending money at private institutions puts the state Constitution “on a collision course” with the U.S. Constitution.
