South Carolina Supreme Court strikes down school voucher program
By a 3-2 vote this month, the South Carolina Supreme Court declared unconstitutional a school voucher program that funneled public funds to private and religious schools. The Education Scholarship Trust Fund program (ESTF), enacted last year, provides low-income South Carolina parents with up to $6,000 in taxpayer funds that can be directed to education expenses, including private and religious school tuition. That program, the court majority held, runs afoul of the South Carolina Constitution provision stating that “[n]o money shall be paid from public funds … for the direct benefit of any religious or other private educational institution.”
First, the court explained, the scholarship funds are paid from the state treasury into the ESTF. From there, they are directed by qualifying parents to the eligible school of their choice. Because they initiate from the state treasury, the majority held, they are “public funds,” subject to the “no direct benefit” provision. The court characterized the state’s argument otherwise as an “attempt to deploy a trust to avoid constitutional limits on the use of public funds.”
Second, the court held that a program providing funds for private and religious school tuition is providing a “direct benefit,” to those schools and thus is not a permissible use of public funds. Even though parents have a choice about where to direct the scholarship funds, the benefit is not indirect (as the state argued) but direct. Here’s an excerpt from the decision:
We liken Respondents’ choice argument to the adage that “a rising tide lifts all boats.” Like the tide, the public funds released by the Act for tuition benefit all education service providers, public and private. But just because the benefit is diffuse does not mean it is not direct; the effect of the tide is the same on all the boats.
The court concluded:
A parent who chooses to use a scholarship to pay their child’s private school tuition is undoubtedly using public funds to provide a direct benefit to the private school. … [W]e can see the Act funnels public funds to the direct benefit of private schools. This is what our constitution forbids.
The decision is a strong defense of public schools against the threat of school voucher programs that would benefit private schools, including religious schools, using taxpayer money. Where state law explicitly forbids such funding, no amount of creative accounting should cloud reality. As BJC has long advocated, school voucher schemes – whatever the guise – are a bad idea for both the church and the state. Religion and religious education should not be subsidized by taxpayers.
But I recommend reading this entire opinion for another reason. In detailing the history of the constitutional provision in question, Justice David Garrison Hill explains the significant role that racial segregation played in the long legislative story of education in South Carolina. He starts:
Over fifty years ago, the people of South Carolina reaffirmed their commitment to South Carolina’s public school system by voting to amend the South Carolina Constitution to adopt Article XI, Sections 3 and 4, mandating a system of free public schools open to all children and prohibiting public money to directly benefit private schools.
Read the whole thing.
Legal protections against the public funding of private and religious schools aren’t about limiting choice. They are about protecting the taxpayer and upholding our civic commitment to public education, where all students and parents know they belong, regardless of background or circumstance, and where many children learn for the first time to live and play and communicate with others who are different from them.
For more on BJC’s support of public schools and opposition to school vouchers, check out episode 8 and episode 9 of Season 5 of BJC’s Respecting Religion podcast. In that 2-episode series, BJC Executive Director Amanda Tyler and General Counsel Holly Hollman discussed the many problems with government-funded religious education.
