Top Republican leaders who support school choice initiatives in South Carolina are calling for redress after the state Supreme Court struck down the state’s school voucher program last month.
On Sept. 12, the state Supreme Court issued a 3-2 decision that left upward of 3,000 children from low- and moderate-income families with fewer education options. Last week, Gov. Henry McMaster (R-SC) and the state Department of Education asked the state Supreme Court for a rehearing of its ruling amid calls by some who advocated a review of the case by the highest court in the nation.
The dispute surrounds the state’s Education Scholarship Trust Fund, a program that began in 2023 and awards up to $6,000 per eligible student for education via private or religious schools. The court’s majority held that the program violated Article XI, Section 4 of the South Carolina constitution.
That provision, commonly known as a Blaine Amendment, states: “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.”
The surprising blow to the voucher program comes just four years after the Supreme Court issued a major ruling against Blaine Amendments in Espinoza v. Montana Department of Revenue, which held that the Constitution forbids states from excluding families and schools from education choice programs based on their religious status.
The Espinoza decision reinstated Montana’s scholarship program and rejected Blaine Amendments, which are included in 37 different state constitutions, as “born of bigotry” against religious groups.
Religious and school choice advocates responded to the South Carolina Supreme Court decision with great frustration, arguing the ruling appeared an affront to what Chief Justice John Roberts’s court held just four years ago.
On September 12, 2024, the South Carolina Supreme Ct ruled 3-2 that the state’s education scholarship was unconstitutional based on the state’s Blaine amendment, putting the educational success of thousands of students in jeopardy.
In June, 2020, @SCOTUS ruled that Blaine… pic.twitter.com/JHeImUC46e
— Jeanne Allen (@JeanneAllen) September 24, 2024
“This is not a legislative issue. It’s a judicial one,” said Jeanne Allen, founder of the pro-school choice group Center for Education Reform.
Allen suggested that the unfavorable ruling be appealed to the Supreme Court, posting on X that “sometimes when justices fail to heed precedent, it’s time to go over their head.”
However, legal experts told the Washington Examiner that the appropriate solution might not be to litigate the dispute further, noting that state lawmakers might be better positioned to resolve the problem surrounding the school voucher program.
Ilya Shapiro, a senior fellow of constitutional studies at the Manhattan Institute, supported the school voucher program in an amicus brief at the state Supreme Court level. But Shapiro indicated that he doesn’t “think the challengers here are going to be filing a cert petition” with the Supreme Court.
“The program at issue did not distinguish between religious and secular schools, and there wasn’t evidence of religious animus and that sort of thing,” Shapiro said, noting that is what distinguishes the case from Espinoza and a similar case the Supreme Court decided in 2020 known as Carson v. Makin.
“It’s a good federalism reminder that the Supreme Court does not review state law decisions,” Shapiro added.
The initial challenge to the program was brought by five South Carolina parents, the South Carolina State Conference of the NAACP, and others. Challengers argued the program sapped resources from public schools that “already lack sufficient resources,” according to Candace Eidson, the namesake of the lawsuit.
The voucher program has enabled families with incomes as low as $31,000 per year to use education savings accounts to send their children to private schools, including religious ones. Notably, beneficiaries of the program may still use the funds for things such as supplies and tutoring costs, as well as some public schools that require fees to attend.
With little legal recourse other than a second chance at the state’s top court, many concerned parents are left wondering about the next steps state lawmakers can take, especially for children currently enrolled at a private or religious school.
David Warner, a South Carolina father, told the Daily Signal last month that he is among the many parents affected by the ruling. He said is not looking forward to telling his sixth grade son that he will have to leave his private Christian school due to the court’s decision.
“I dread that conversation with my son,” Warner said.
The South Carolina Policy Council, a group supportive of the school vouchers, backed the governor’s calls for a rehearing, asking the state Supreme Court to “not leave these students and their families without a path forward.”
Meanwhile, lawmakers are exploring alternatives, including a refundable tax-credit bill, to provide families with school choice options.
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State Senate President Thomas Alexander (R) previously indicated he would not join the governor in his request for a rehearing, saying in a statement that lawmakers would address the problems with the school voucher program when the legislative session begins in January.
For now, it’s up to the South Carolina Supreme Court to decide whether to grant the rehearing, as lawmakers vow to bring solutions to salvage the provision for thousands of low-income families in early 2025.