COLUMBIA, S.C. (Legal Newsline) - A split South Carolina Supreme Court has ruled a state law that provides scholarships to students with money from the state's general fund is unconstitutional.
A 3-2 majority on Sept. 11 invalidated the Education Scholarship Trust Fund Act, passed in 2023 and challenged in court by parents, the National Association for the Advancement of Colored People and the South Carolina Education Association.
Those petitioners claimed it was unconstitutional for students to accept public funds and use them at private schools. Justice Gary Hill wrote the majority opinion, joined by Donald Beatty and James Lockemy.
"(T)he tuition benefits directly subsidize the educational function of private schools are not merely incidental support," Hill wrote.
Plenty of groups filed amicus briefs against and in support of the Educational Scholarship Trust Fund, which uses money appropriated to the state Department of Education to give $6,000 to eligible students.
Eligible schools, as defined in the act, are public or independent schools that choose to participate in the program, but not a charter school. Eligible students must live in the state, have had attended a public school during the previous year and meet household income requirements.
The state constitution, meanwhile, says "No money shall be paid from public funds... for the direct benefit of any religious or other private educational institution."
The State claimed public funds aren't involved and the Act provides no direct benefit to private schools and the money is placed in a trust.
A 2008 decision named O'Brien founds a city's transfer of public funds to a trust to invest them in stocks violated the state Constitution.
"We see no daylight between the trust veneer peeled away in O'Brien and the trust here," Hill wrote. "We therefore hold the ESTF funds are 'public funds.'"
And those funds, when paid to private institutions, are providing a direct benefit, the majority ruled. Not everyone agreed. Chief Justice John Kittredge and Justice John Cannon Few dissented, with Kittredge writing a dissenting opinion.
"Under the South Carolina Constitution, the use of public funds for the direct benefit of a private school is permissible; the use of public funds for the indirect benefit of a private school is entirely permissible," Kittredge wrote.
"(T)he majority opinion today defines the phrase 'direct benefit' so broadly that it swallows any possible meaning of 'indirect benefit' in the process. In doing so, the majority opinion pays lip service to the policy-making role of the legislature."
The dissent says the decision "pulls the rug out" from under the legislature's feet and the feet of the students the Act benefits.
Hill responded, "Our duty is to serve the Constitution, the supreme policy of our land. As such, our obligation is not to allow a rug to cover up well-marked constitutional ground, no matter how inconvenient that ground may prove to be to otherwise arguably salutary policies. The entire concept behind the Constitution and the rule of law is that the end cannot justify the means."