Federal school-choice suit raises questions about future court, legislative actions

Federal school-choice suit raises questions about future court, legislative actions


Update: 10/26/23 - The South Carolina Education Association announced that the association, the South Carolina State Conference of the NAACP and six public school parents filed a lawsuit asking the S.C. Supreme Court to nullify a state law passed earlier this year creating a school-choice program that would use state funds for scholarships to allow eligible students to attend private schools.

A federal appeals court has dismissed a lawsuit claiming that a state constitutional provision banning direct public funding of religious or other private schools in South Carolina was rooted in religious and racial bigotry.

But it’s unclear whether the ruling last month by a panel of the Virginia-based U.S. 4th Court of Appeals will affect legislative efforts to remove the constitutional provision through a statewide ballot measure, or a predicted legal challenge to historic school-choice legislation passed this year.

In a federal lawsuit filed in April 2021, which dealt with access to federal COVID-relief funds, the Bishop of Charleston, on behalf of the Roman Catholic Diocese of Charleston, South Carolina, and the South Carolina Independent Colleges and Universities (SCICU) Inc. said Article 11, Section 4 of the S.C. Constitution – commonly referred to as the “Blaine Amendment” – violates the equal protection and free exercise clauses of the U.S. Constitution. The suit contended that the state provision was “based on longstanding and pervasive religious and racial bigotry.”

The section in question, as amended by S.C. voters in 1972, reads, “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 or any religious or other private educational institution."

The diocese and SCICU in court papers said the Blaine Amendment, which first appeared in the state constitution of 1895, was pushed by Benjamin Tillman, a white supremacist governor and later U.S. senator who, after Reconstruction ended and Union troops withdrew from the state, “set out to craft a new constitution that permanently protected white power with literacy requirements for voting and other racist policies.”

Unlike the current provision banning only direct public funding of religious or other private schools, the 1895 constitution prohibited direct or indirect public funding of “any college, school, hospital, orphan house, or other institution, society or organization, of whatever kind, which is wholly or in part under the direction or control of any church or of any religious or sectarian denomination, society or organization.”

“This provision reflected the ugly marriage of two prejudices: religious bigotry against immigrant Catholics coming to America’s shores and racial prejudice against newly freed slaves whose lives, living conditions, and educational opportunities were being improved by religious missionary organizations,” according to the plaintiffs’ complaint.

The plaintiffs contended that the 1895 provision “served an important Tillman goal: if the freed slaves and their descendants were cut off from private schools that might actually teach them to read, then they could never reach a critical mass of voters who could hurdle the literacy test blocking their access to the ballot box.”

South Carolina was among more than 35 states at the time that adopted similar amendments after an effort by U.S. Rep. James Blaine of Maine – the amendment’s namesake – to change the U.S. Constitution failed in 1875, according to court papers.

The suit by the diocese and SCICU was filed six months after the S.C. Supreme Court unanimously ruled in favor of the Orangeburg County School District, the South Carolina Education Association and several other petitioners in a separate, related legal case. The October 2020 ruling by the state’s top court held that a plan by Republican Gov. Henry McMaster to use $32 million in federal COVID-relief funds to provide grants of up to $6,500 to eligible private-school students violated the direct-funding ban under the state constitution.

Named as main defendants in the subsequent federal suit were McMaster; S.C. Department of Administration Director Marcia Adams; and Brian Gaines, the department’s former state budget director who recently was appointed by McMaster as the state comptroller general.

Ironically, although a vocal school-choice proponent, McMaster contended in his official answer in the federal suit that the plaintiffs’ claim about religious and racial bigotry behind the 1895 provision “consists of legal conclusions, arguments, inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact,” adding, “To the extent a response is required, the allegations are denied.”

In February 2022, U.S. District Court Judge Bruce Howe Hendricks, who is based in Charleston, sided with McMaster and the other defendants, ruling that although “both racial and religious prejudice existed in virulent form in the late 1800s,” the plaintiffs “fail to satisfy their burden of proving discriminatory intent, either racial or religious,” behind the current state constitutional provision, adding that their “failure of proof about discriminatory impact dooms their claims.”

Hendricks pointed out that the current constitutional provision was one of the recommendations in 1969 by the legislatively created West Committee, headed by future governor John West; and was approved by voters in 1972. She noted that the current provision “no longer distinguishes between religious and non-religious schools, and it no longer bars all funding to these schools.”

“The original 1895 provision no longer governs,” she wrote.

The plaintiffs appealed to the U.S. 4th Circuit of Appeals, based in Richmond, Virginia, but a three-member panel on July 6 dismissed the case, ruling that the plaintiffs’ claims were “moot” because all of the federal COVID-relief funds that could have been used for private school grants under McMaster’s plan, which wasn't implemented, had been dispersed by the state for other purposes.

The Nerve this week and last asked representatives of the diocese, SCICU and the Chicago-based Liberty Justice Center, which provided the main legal representation for the plaintiffs, for comment if they planned to appeal the latest ruling.

In a written response Thursday, Jeff Perez, the SCICU’s president and CEO, said that given the 4th Circuit’s ruling, “we concluded with our counsel that the U.S. Supreme Court would not take the case on appeal.”

‘In jeopardy’

Spurred by the state Supreme Court’s 2020 ruling against McMaster, S.C. House Speaker Murrell Smith, R-Sumter, introduced a joint resolution in January, which was co-sponsored by 21 other Republicans, to ask state voters whether they want to repeal the direct-funding ban in the S.C. Constitution.

“That (Supreme Court) ruling is what really concerned me,” Smith, an attorney, told the House Judiciary Constitutional Laws Subcommittee in February. “We have a question as to whether indirect (public funding) to religious and private institutions is constitutional, and reading that opinion … there obviously may be some concerns that the (Supreme) Court could find likewise in that situation.”

Smith said at the hearing that although he believes the state constitution allows indirect funding to private schools, citing as examples the college tuition grants and other higher-education scholarship programs, as well as kindergarten and First Steps programs, he’s concerned that given the Supreme Court ruling, “all this could be in jeopardy.”

Changing the state constitution requires a two-thirds vote of the 170-member Legislature and a simple majority vote of state electors. Smith’s joint resolution passed the House in February by the two-thirds margin but never got out of the Senate Judiciary Committee, chaired by Sen. Luke Rankin, R-Horry.

The Nerve this week and last reached out to Smith through his spokeswoman, Nicolette Walters, for comment about the joint resolution. Walters referred The Nerve to his statements at the Feb. 9 subcommittee hearing, though he didn’t provide any new response by publication of this story.

Perez said in the wake of the 4th Circuit’s ruling last month, the SCICU, which represents 21 private nonprofit colleges and universities headquartered in South Carolina, has decided to focus on helping to get the joint resolution passed in the Legislature next year so the issue can go before voters.

“This is clearly an important public policy decision,” he said in his written response. “So why not let the public decide?”

Perez highlighted several points on behalf of his organization, including:

  • SCICU “strongly believes there’s no place in our state constitution for the racism and anti-religious sentiment that inspired the Blaine Amendment, and that state and local governments should have the freedom to engage who they believe will best serve the public benefit.”
  • The Blaine Amendment “amounts to a mandate imposed on private businesses, i.e., the state’s private colleges and universities, that thwarts public-private cooperation.”
  • The Blaine Amendment prevents the distribution of federal funding to private schools and colleges, though Congress “intended access.”

In a written response earlier this year to The Nerve, University of South Carolina constitutional law professor Derek Black said no states in recent years have repealed constitutional bans like South Carolina’s dealing with the direct public funding of private schools.

“No measure, whether by amendment or referendum, put to the full electorate on vouchers has ever succeeded,” Black said in his January response. “The vast majority of the public has, across all states, supported the principle of keeping public dollars in public schools.”

Michael Acquilano, chief operating officer of the Roman Catholic Diocese of Charleston, said in a written response to The Nerve in February that the diocese supports the “repeal of this (Blaine) amendment and all other racist and bigoted traces of it in our laws and regulations.”

“Parents are the primary educators of their children and further attempts to block them from accessing other educational options is a travesty,” he said. “South Carolina must prioritize children first, and not institutions.”

Acquilano said then the diocese, which serves the entire state, had a total of approximately 7,500 students in 33 schools, with the number of parishioners totaling about 350,000 in 114 parishes and missions.

No legal challenge yet

In a historic move, the Legislature this year passed a bill, which McMaster signed into law, establishing a school-choice program using state funds that would provide, starting in the 2024-25 school year, $6,000 scholarships to 5,000 eligible students to attend approved private schools, with the number of eligible scholarship students increasing to 15,000 in the third and subsequent years.

The program in the first year would be limited to eligible lower-income students but would include middle-income students by the third and succeeding years, as The Nerve revealed in February.

In a statewide poll released in January by the South Carolina Policy Council – The Nerve’s parent organization – 60% of 637 likely S.C. voters said they strongly or somewhat approved of a scholarship program for low-income, K-12 students to attend private schools. 

State Sen. Greg Hembree, R-Horry, the former top prosecutor for Horry and Georgetown counties who currently is chairman of the Senate Education Committee, told The Nerve in January that he expected a legal challenge if the bill became law.

But he said then that the bill, the main sponsor of which was Sen. Larry Grooms, R-Berkeley, was a “dramatically different model” compared to McMaster’s proposed private-grant program with COVID-relief funds, expressing confidence that the bill, if enacted, could withstand a legal challenge.

“What you have is an appropriation held in trust, and the trustee is essentially the parent,” Hembree said about the bill, contending that it would not provide direct funding to private schools. “The (state education) department is like a bank that holds the money.”

The Nerve in February asked David Hodges, an attorney with the Virginia-based Institute for Justice who specializes in educational issues, about whether South Carolina’s current constitutional direct-funding ban could be used as the basis for future litigation challenging enacted school-choice legislation.

“First, if the legislature enacted a program that provided scholarships for students to attend private schools, including religious ones, there would be no aid, direct or even indirect, to private schools,” Hodges said in his written response. “Rather, any scholarship funds that found their way to private schools would do so only as an incident of the private choices of scholarship recipients. It is the scholarship recipients, not their chosen schools, who are the beneficiaries in such programs.”

“Second,” Hodges continued, “parents have a constitutional liberty to direct the upbringing and education of their children, including sending them to private schools, whether religious or not. Hypothetically, if a South Carolina court interpreted the state’s Blaine Amendment as a complete bar to financial aid for students who attend private schools, then it would be penalizing parents for exercising this constitutional liberty.”

For now, although McMaster signed this year's school-choice bill into law on May 4, another legal challenge in the state's top court hasn’t yet materialized.

The Nerve last week asked the South Carolina Education Association, one of the successful petitioners in the 2020 state Supreme Court ruling against McMaster’s private-grant proposal, if it planned to contest the new school-choice law, though a spokesperson provided no response by publication of this story.

Asked the same question, Columbia lawyer W. Allen Nickles III, an attorney for the petitioners in the 2020 case, said in a written response this week to The Nerve, “I don’t have anything to share at this time.”

Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-394-8273 or [email protected]. Follow him on Twitter @RickBrundrett. Follow The Nerve on Facebook and Twitter @thenervesc.

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