SC justices: Can Gov. McMaster give $32 million in public money to private schools?

South Carolina Supreme Court justices on Friday repeatedly grilled Gov. Henry McMaster’s top lawyer on whether the governor had unlawfully devised a plan to give $32 million in coronavirus public federal emergency funds to private school students.

If the Supreme Court rules against the governor, Associate Justice John Cannon Few asked McMaster attorney Thomas Limehouse, “I assume that the governor would honor the decision of the State Supreme Court as to what South Carolina law is, is that correct?”

Limehouse answered, “I have no reason to believe otherwise. The governor is a strong proponent of the rule of law.”

That was one crisp exchange in a case that has attracted widespread attention from educators and political leaders around the state. Under South Carolina’s state Constitution, public money is prohibited from being spent on “any ... private educational institution.”

McMaster, intending to use $32 million in federal coronavirus emergency relief funds earmarked for education, has set up a program called Safe Access to Flexible Education Grants Program (SAFE). Under that program, McMaster intends to distribute up to $6,500 to approximately 5,000 students to help them pay for tuition at private schools.

McMaster’s plan is being challenged by Thomasena Adams, an Orangeburg County educator, who alleges McMaster’s proposal is unlawful. The Supreme Court has put McMaster’s plan on hold while it decides the issue. Other plaintiffs in the case are the Orangeburg County School District and the S.C. Education Association, a teachers’ group.

As the hearing began, Chief Justice Beatty predicted questioning would be intense, saying “It’s going to be a hot bench today.”

For the next 90 minutes, most justices took turns interrogating Limehouse, and to a lesser extent, Adams’ lawyer, Skyler Hutto of Orangeburg.

Saying the governor’s efforts to give $32 million in federal conronavirus emergency money to private schools sounds like a “thinly disguised school voucher program,” Associate Justice Kaye Hearn told Limehouse that Congress “clearly” intended for that money to go to extend learning opportunities to students without internet access or similar programs during the pandemic. She asked Limehouse if any other of the nation’s 50 governors were launching similar efforts.

“I would take issue with the (school voucher) characterization, Justice Hearn,” Limehouse replied, before saying that Oklahoma and New Jersey are doing initiatives similar to McMaster’s.

When Limehouse pointed out that Gov. McMaster had last week recommended that $50 million in CARES Act money go to public schools and was poised to distribute another $400-plus million to public schools, Chief Justice Donald Beatty didn’t seem impressed.

“Somehow,” the chief justice said sarcastically, “that is supposed to alleviate the concerns we have have about the legality using the ($32 million) now?”

At another point, Beatty asked Limehouse, “If the governor gives money to private schools, under our Constitution ... wouldn’t that be unconstitutional?”

Limehouse replied, “No, sir ... we don’t think there’s a conflict.” The money comes from the federal government, but the State of South Carolina does not have direct control of that money, nor does the money provide direct benefits to private schools, Limehouse said.

“Well,” said Beatty. “We disagree.”

Associate Justice Few then told Limehouse that “the governor does control those funds — that’s exactly what we are talking about.”

Elaborating, Few told Limehouse, “It’s not too late for the governor to say, ‘I made a mistake and what I intended to do violates state law and I’m going to send the money back to the federal government. So the governor does control those funds.”

At another point, Associate Justice John Kittredge questioned Limehouse: Is your position that the federal grant money would go to individual students, who would then pay the school - or to the school?

If the money goes directly to a person, Kittredge told Limehouse, that would violate the federal law setting up the Coronavirus Aid, Relief, and Economic Security Act (CARES), which provides the money the governor wants to give to private school students. The CARES Act doesn’t allow money to be given to individuals, Kittredge said.

But if the money goes to the school — an “entity” — that would violate the state Constitution, Kittredge said.

“Which one is it?” Kittredge demanded.

“Your honor, I don’t think it’s an either-or,” Limehouse replied, launching into an explanation of the legal difference between a “recipient” of federal funds or a “beneficiary.”

Before coming under the justices’ fire, Limehouse had started out saying, “This case is about the governor’s discretionary authority to distribute federal emergency grant funds — not state funds, as that term is understood — for the benefit of students and families to meet essential education-related needs.”

Hutto, who spoke first, started by saying, “This case is about preserving the Constitution.”

The two core issues are: Can the state void the constitutional prohibition on giving public money to private schools, and “has the state subverted its commitment to public education?” Hutto said.

In 1972, voters approved a constitution that expressly prohibited public money from going to private schools, and “the court should assume that they meant it,” Hutto said.

Justices questioned Hutto on a variety of legal questions, including whether his clients had “standing” — sufficient legal interest — to bring the lawsuit and whether the federal tax dollars that McMaster wants to spend should be considered public money under S.C. law.

One possibility could be, Few told Hutto, that the money McMaster wants to spend could be considered “federal public funds over which the state Constitution has nothing to say...It’s a little more complicated than just public versus private.”

Justices gave no indication of when they might rule. Friday afternoon, they issued an injunction preventing McMaster from spending the $32 million while they are deciding the case.

It is hard to tell from the justices’ questions which way they might rule. Often, they ask attorneys tough questions to elicit answers that may help clarify issues in a case. Also arguing Friday with Hutto was attorney Al Nickles of Columbia.

The private school tuition grants that McMaster favors are not available for all students. Only students whose households fall within 300% of the federal poverty threshold are eligible for the grants.

This story was originally published September 18, 2020 at 5:13 PM.