For many good reasons, our Constitution was not framed with the idea that public institutions should operate like private businesses.
-South Carolina Supreme Court majority opinion, Eidson v South Carolina Department of Education
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.
Last year, South Carolina passed S. 39 (Act 8), a statewide school voucher bill (entitled the Education Scholarship Trust Fund— a title that, as well see, telegraphs an attempt to get around the state constitution on a technicality).
Today, the Act largely failed to get away with that technicality, as the South Carolina Supreme Court’s majority struck down language which would create and administer the private school vouchers (presented in the Act as “trust funds,” even if the Court’s majority explicitly didn’t accept this presentation).
The Court rejected the argument that voucher funds aren’t “public funds”.
In Justice Hill’s majority opinion, the South Carolina Supreme Court responded today to the state’s argument that the funds are private because they are placed in a “trust fund” by saying they are “‘trusts’ in name only” (10). The opinion goes on to argue that even if Education Scholarship Trust Funds (or ESTFs) were true “trusts,” the “trustee” (which is the State government) still “holds legal title to the trust property until it is transferred”.
In other words, while the State argues it isn’t using funds to directly benefit private schools (which is an explicit violation of the SC Constitution), the Court argues that it controls those public funds right up until they are transferred “to an education service provider” (11).
The argument of bill proponents is something like, “We’re not funding the private schools, we’re putting the money in an account for the sole and express purpose of citizens using it to fund the private schools.” In short, the majority did not buy this line of argument.
In the end, the Court majority explicitly stated that despite the claims of the Act and its proponents, “ETSF funds are ‘public funds’”
The Court also rejected the argument that the public funds wouldn’t be used for the “direct benefit” of private schools.
The Court majority further explicitly held these public funds would be used for the “direct benefit” of private schools, in violation of the State Constitution (13). It also repeatedly referenced earlier and nearly identical cases, such as Adams v McMaster (another case in which now-Superintendent of Education Weaver, who was at the time head of Palmetto Promise Institute, was named). In this case, as in that one, the Court (despite efforts by the Republican majority to stack it in recent years with more amenable justices) did not buy the argument that creating an account in which to place private school voucher funds was meaningfully different from other ways of creating the voucher.
The majority opinion does seem to give some hints to legislators about how to make this Constitutional, involving unpopular measures to open up competition for public funds to even more private entities inside and outside of student’s home district (see page 17). But it’s hard to tell if they are being helpful to the legislature, or subtly throwing shade when they write, “This is not the kind of free trade envisioned by Adam Smith or Milton Friedman.” (Friedman, who was a libertarian economist who helped popularize the argument that private business-style competition was a good thing for American education, an idea embraced by many during the school segregation era as an argument for segregation academies. He continues to be a hero of many voucher proponents.)
In any case, the Court majority did not mince words, writing, “After we clear away the window dressing, we can see the Act funnels funds to the direct benefit of private schools” (17).
Severability.
The majority did not strike down the whole Act, though it does seem to have thwarted the primary goal of many of its proponents, which was to create a system of publicly-funded private school vouchers which would somehow get around the SC Constitution’s specific, clear, and obvious prohibition against all or most forms of private school vouchers.
The specific part of the act found unconstitutional is a clause which allows ETSF funds to be used for “tuition and fees for an approved nonpublic online education service provider or course”. The decision also explicitly prohibits the State from “disbursing ETSF scholarships for the tuition and fees of nonpublic educational service providers”.
So, while the Act as a whole mostly stands, this is a major setback for those who were hoping to use it as a vehicle to expand “universal school vouchers” in the state, at least for the time being.
What does this mean?
There is a lot left unsaid in the majority opinion, which fairly narrowly targets the constitutional implications of the state directly funding private schools. This leaves some interesting questions about the ESTF program moving forward:
Since bill authors included “public schools” in their definition of “eligible schools,” could public school families still apply for these funds? (The Court notes that the authors never use the term “eligible schools” after defining it.)
It’s unclear which private goods or services are still eligible for ESTF money. For example, could a family spend the funds on private curriculum— for example, Hillsdale or PragerU materials? Could a homeschool group embracing extremist or rhetoric use public funds to buy materials or hire services not considered “educational service providers”?
How will the South Carolina Department of Education, which is vested with authority to determine eligibility and oversee the funds— and whose head is an avowed, career-long school voucher advocate— make decisions about who gets them, what counts as “misuse,” etc.?
Because only a narrow part of the Act was struck down, it’s likely that only time will tell.
Great read