Trump Justice Department asks SC Supreme Court to reverse McMaster school ruling

The Trump administration’s justice department is trying to convince the S.C. Supreme Court to do a flip-flop on its 5-0 decision that earlier this month prohibited S.C. Gov. Henry McMaster from spending $32 million in federal coronavirus relief funds on state private schools.

In a filing with the state Supreme Court, Peter McCoy, the U.S. Attorney for South Carolina, wrote that the Department of Justice is seeking friend of the court status to ask the state State Supreme Court to grant a new hearing to reconsider its decision on the relief funds.

McCoy’s filing said the U.S. Department of Education had concluded that it is, in fact, lawful to spend coronavirus relief funds on private and independent schools.

A source familiar with the case said McCoy had filed the amicus brief at the request of the Department of Justice in Washington, which McCoy works for. McCoy had no public comment on the matter.

Meanwhile, McMaster’s lawyers who lost the case have filed a petition with the S.C. Supreme Court, asking the high court to reconsider its ruling and grant a new hearing in the case.

It is not unusual for losing lawyers in a case to petition a court to ask for a rehearing. Occasionally, such motions get a new hearing, but only rarely do courts reverse themselves. Matters discussed at rehearings are supposed to be issues the court may have overlooked or gotten wrong — not just a rehash of the same issues treated in the original decision.

On Oct. 7, the State Supreme Court unanimously ruled that federal funds sent to South Carolina for coronavirus emergency education relief cannot be spent on the state’s private schools.

Chief Justice Donald Beatty, writing for the majority, said the state Constitution is clear that public money — which the high court said includes federal emergency relief funds for education purposes — cannot go to private schools.

“Even in the midst of a pandemic, our State Constitution remains a constant, and the current circumstances cannot dictate our decision. Rather, no matter the circumstances, the Court has a responsibility to uphold the Constitution,” Beatty wrote in a 15-page decision.

The unanimous decision was a defeat for McMaster, who in July announced he was designating $32 million in federal COVID-19 relief funds to go to pay one-time tuition grants of up to $6,500 per student for about 5,000 private school K-12 students across the state.

In late July, McMaster’s announcement was challenged by an Orangeburg educator, Thomasena Adams, who sued in state court, alleging McMaster’s proposal was unlawful under the state Constitution, which says that public money can’t be spent on private schools. Joining her in the lawsuit were the Orangeburg County School District and the S.C. Education Association, a teachers’ group.

Besides McMaster, defendants in the case included Palmetto Promise Institute, a conservative group, the S.C. Department of Administration and the S.C. Office of the State Treasurer.

On Sept. 18, the Supreme Court heard oral arguments in the case in what is called original jurisdiction, meaning the case didn’t have to go through months or years of appeals in lower courts.

In their request for a rehearing, McMaster’s lawyers argued that the $32 million in question “are not public funds within” the meaning of the state Constitution.

Also, McMaster’s lawyers argued, the plaintiffs who challenged the governor’s effort to spend the $32 million on private schools didn’t actually have “standing,” or a clear right to bring a lawsuit on the matter because they wouldn’t be directly affected by such spending.

In its Oct. 7 ruling, the Supreme Court had ruled that the plaintiffs had “standing” because they had established that the issue was such a matter of “public importance,” and that gave them the right to sue.

But the governor’s petition for rehearing argued that the Supreme Court had incorrectly granted “standing” to the plaintiffs for a number of procedural and substantive reasons.

The Palmetto Promise Institute, one of the McMaster’s co-defendants, released a statement Friday from spokesman Lawson Mansell saying, “The Court’s decision missed a number of critical facts. We stand with Governor McMaster as he continues to fight for justice for the struggling students denied emergency education relief by this wrong-headed ruling.”

In response to the rehearing efforts, a state teachers’ group, the Palmetto State Teachers Association, blasted McMaster, saying “in a moment of generational crisis, our Governor has decided to tilt at windmills by using valuable time and resources to seek a reversal of the unanimous ruling of our state Supreme Court.”

Skyler Hutto, plaintiffs’ attorney, said late Friday, “We will go forward in whatever manner the Court orders.”

Reporter Maayan Schechter contributed.

This story was originally published October 24, 2020 at 5:00 AM.