SC Supreme Court rules McMaster can’t spend $32M in CARES Act aid on private schools
Public money cannot be spent on South Carolina’s private schools, the S.C. Supreme Court ruled late Wednesday afternoon.
The unanimous 5-0 decision was a high-profile defeat for Gov. Henry McMaster, who earlier this year 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.
“We hold the Governor’s decision constitutes the use of public funds for the direct benefit of private educational institutions within the meaning of, and prohibited by, Article XI, Section 4 of the South Carolina Constitution,” said the 15-page opinion, written by Chief Justice Donald Beatty.
Beatty said the state Constitution is clear on the matter of public money going 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 toward the end of the decision.
McMaster said in a statement he will request the Supreme Court reconsider the decision.
“I remain committed to providing educational opportunity for lower income families and families with special needs at public and private kindergartens, schools, and colleges,” he said. “In addition to the lower income families directly affected by this decision, it may also place in jeopardy millions of CARES Act dollars recently appropriated by the General Assembly to directly reimburse independent private colleges and HBCUs.”
McMaster’s announcement that he wanted to give $32 million of pandemic COVID-19 relief funds earmarked for education to private schools was challenged in July by an Orangeburg educator, Thomasena Adams, who alleged McMaster’s proposal is 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.
Underscoring the high public interest component of the issue, the Supreme Court heard oral arguments in the case on Sept. 18 in what is called original jurisdiction, meaning the case didn’t have to go through months or years of appeals in lower courts. The case was originally filed in state court in Orangeburg County several months ago.
In the hearing before the Supreme Court, justices repeatedly grilled McMaster’s top lawyer, Thomas Limehouse, about whether the governor had unlawfully devised a plan to give $32 million in coronavirus public federal emergency funds to private school students. Limehouse repeatedly claimed the plan was lawful and the governor had discretion to use federal funds that way.
During the months-long legal battle between the plaintiffs and defendants including the governor, the governor’s legal team argued that the plaintiffs lacked “standing,” or the ability to sue, because they hadn’t suffered a specific injury.
But in its decision, the high court specifically rebutted that reasoning, saying the plaintiffs had established that the issue was a matter of “public importance,” which gives them the right to sue.
“The COVID-19 pandemic that has plagued our State in recent months has posed unprecedented challenges in every area of life and severely disrupted essential governmental operations,” Beatty wrote.
“The virus’s impact on education in this State has been ... great. Indeed, it is for this reason that Congress endeavored to appropriate emergency funds through the CARES Act to protect our nation’s students and teachers and to supply states with additional resources to continue providing educational services during this difficult time.”
Therefore, a court decision is necessary in this case to provide “future guidance ... (because) it is likely the situation will occur in the future if and when Congress approves additional education funding in response to the continued COVID-19 pandemic.”
Sherry East, head of the S.C. Education Association, a plaintiff in the case, said: “I am excited, elated, overjoyed ... There’s been a movement for years to put public finances into private schools, and we were worried this would give them (supporters of public money going to support private schools) a precedent for more voucher programs that are in the works in South Carolina.”
“I can’t say what (the money) will be used for, but I would hope it would be put to good use in some school districts that really need it right now.” She said she understands private schools face similar challenges, but those schools have access to other funding options such as PPP loans.
Winning attorney Skyler Hutto said, “I don’t think that it could have gone much better for us. We’re very happy of course to have been able to bring this to the attention of the court. We’re very happy to have had a ruling in our favor. Al Nickles (Hutto’s co counsel) and I were extremely proud to be representing South Carolina schools, South Carolina parents and South Carolina children in our Supreme Court, and we couldn’t be happier that it turned out this way.” It was Hutto’s first case before the Supreme Court.
During the Sept. 18 hearing, Associate Justice John Cannon Few said a court order requiring McMaster not to spend the public money on private schools was not necessary but asked 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.”
However, a spokesperson with Palmetto Promise said of the ruling, “We believe today’s decision errs on several essential points. As a consequence, thousands of moderate and low-income South Carolina families hurt by COVID have been denied the relief they need for their children’s education. We plan to review the decision in concert with the Governor’s office to determine next steps and will continue to fight for these families.”
Defendants in the case were McMaster, the Palmetto Promise Institute, South Carolina Office of the Treasurer, and the S.C. Department of Administration.
The ruling was a bitter pill for conservatives in state government, who have over the years repeatedly tried to get public money allocated in various ways, including vouchers, to private schools.
Besides Beatty and Few, justices on the case were Kay Hearn, John Kittredge and Court of Appeals Judge John Geathers, sitting in for Buck James, who recused himself.
The Constitution says, “No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.”
Reporter Bristow Marchant contributed to this report.
This story was originally published October 7, 2020 at 5:43 PM.
