In 2023, South Carolina created the Education Scholarship Trust Fund (“ESTF”) program. This student aid program grants thousands of qualifying, low-income families a $6,000 scholarship that parents can use for educational expenses for their children—things like tuition and fees at private and out-of-district public schools, curricula and supplies for homeschooling, tutoring, therapies, exams, and extracurricular activities. A new constitutional lawsuit seeks to ensure the program can continue to be used to benefit South Carolina families.
Parents Yamilette Albertson and Constantine Shulikov are the type of people for whom the program was made. They knew that the public schools their children attended were not right for them, but they couldn’t afford an alternative. When the opportunity came for Yamilette and Constantine to get scholarships for their children, they jumped at the opportunity. Their children have been thriving in their new schools ever since.
Unfortunately for these families, the South Carolina Department of Education adopted a policy barring families from using their scholarships on tuition and fees at private schools. That policy, which the Department maintains is mandated by a recent interpretation of the state constitution by the South Carolina Supreme Court, penalizes parents because of their choice to educate their children in a private school—a choice protected by the Fourteenth Amendment to the federal Constitution. The Department, in short, will fund virtually any type of education a parent chooses for her children—e.g., public schooling, homeschooling, tutoring—so long as it is not a private school.
This policy is arbitrary, irrational, and unconstitutional. That’s why Yamilette and Constantine have teamed up with the Institute for Justice (“IJ”) to file a lawsuit against South Carolina’s Superintendent of Education challenging this policy under the United States Constitution. The lawsuit seeks to ensure that they, and all parents in South Carolina, can access the education that best meets their children’s needs.
Case Team
Case Documents
Petition for Original Jurisdiction
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In the spring of 2023, the South Carolina General Assembly passed, and Gov. Henry McMaster signed, the Education Scholarship Trust Fund Act into law. 1 The act established a program that allows thousands of qualifying, low-income families to apply for a $6,000 scholarship. The General Assembly’s goal was to empower parents to “create a customized, flexible education” for their children by allowing parents to use the money for educational expenses including tuition and fees at public and private schools, curriculum, supplies, tutoring, therapies, exams, and extracurricular activities. 2
The South Carolina Education Association and other parties challenged the program shortly after it took effect, arguing that it violated several provisions of the South Carolina Constitution. 3 In September 2024, by a vote of 3-2, South Carolina’s high court held that insofar as the program allowed parents to use their child’s scholarship money for tuition and fees at private schools, it violated the South Carolina Constitution’s prohibition on public money going to “the direct benefit of any religious or other private educational institution.” 4
Even as it invalidated this aspect of the program, the court upheld the many other educational purchases that a parent could make under the program, including tutoring services, computer assistance, a host of therapies for pupils with disabilities, and transportation-related services.
In response to the ruling, the South Carolina Department of Education adopted a policy flatly barring a child’s use of the scholarship program on tuition to attend a private school. As a result, South Carolinians are now free to use the program on virtually any educational expense for their children, so long as it is not attendance at a private school.
The Plaintiffs
When it comes to schooling, most parents want one thing above all: the best education for their children. But not every parent can afford it. So, when Yamilette Albertson and Constantine Shulikov learned about the ESTF Program, they did what thousands of other parents did and applied for scholarships.
Fortunately, Yamilette’s and Constantine’s children were awarded scholarships. This meant that they finally had the resources they needed for their kids to get an education that fit their needs. But because of the Department of Education’s new policy, those scholarships have effectively been rendered useless.
Yamilette Albertson
Yamilette is a single mom. For a decade, she served her country in the Marines, where she worked as a recruiter at home and as a combat engineer in the Middle East. After retiring from the Marines, she had a short spell of unemployment before finding work as an operations manager at a local store. Although money is tight, Yamilette makes enough to support her 17-year-old daughter and her six-year-old twin boys. Her 65-year-old father, a military veteran who is battling cancer, also lives with her.
Yamilette did not always send her children to private school. As her daughter approached her senior year at a public school, she concluded that her school hadn’t done a good job of providing her with post-graduation opportunities. Yamilette and her daughter researched a local private school and, after going on a tour of it, came away impressed. The school offered small class sizes, good career opportunities, religious instruction, and a rigorous education—all qualities that were missing from her public school.
Unfortunately, Yamilette was not able to afford the tuition for her daughter’s education. But after talking with the school’s administration, she learned about the ESTF Program. Her daughter then applied to the school and, after being accepted, Yamilette applied for—and received—a scholarship for her daughter.
Almost immediately after starting at her new school, Yamilette’s daughter began pressing her mom to enroll her younger brothers in the school so that they could also have the opportunities that she had been missing. Yamilette resisted. Even though she was able to make ends meet with one scholarship, sending two more children to a private school was financially impracticable. Her daughter then told her mom that she would get a part-time job at a shoe store to help pay for her brothers’ education. The job made the difference. Between Yamilette’s and her daughter’s earnings, Yamilette’s savings, and the ESTF Program, the family was able to pull together enough money to pay for the education of all three children at the school.
Because of the new Department of Education policy, however, Yamilette is facing a dilemma. Although Yamilette may be able to afford to send her kids to private school for the rest of the calendar year, Yamilette has no idea what will happen once the year ends. If the Department’s policy is not enjoined so that the Program can operate as the legislature intended—that is, allow use of scholarship funds for private school tuition—Yamilette will have no choice but to re-enroll her children in public schools that are not the best fit for her children. And all the benefits her children have attained from their schools—better education, one-on-one attention, religious instruction, and professional opportunities—will disappear.
Constantine Shulikov
Constantine Shulikov works in education. For over two decades, he has worked at one company as an instructional designer. This means that he produces training materials that help fellow employees learn how to do different tasks at work. It is meaningful work that has shown him how people learn and absorb information differently.
Over the years, Constantine and his wife have tried different kinds of schooling for their children. Some of their children have been homeschooled while others have attended public or private school. In each circumstance, Constantine and his wife have simply tried to choose the best education for each of their children, who each have different needs.
For the past few years, five of his children attended a public charter school. Although the education the school provided was adequate, he and his wife felt like their children weren’t reaching their full potential. They wanted something better for their children—better teachers, smaller class sizes, and an education that reflected their family’s values. So, when Constantine and his wife learned about the ESTF Program, it showed them a whole new world of possibilities.
After receiving scholarships, they enrolled their children in a private school. The difference in their children since enrolling in the school has been remarkable. The children are markedly more excited about going to school. They love their teachers and the friends they’ve made. Whereas before their children felt lost in the crowd, now they feel like they get one-on-one attention. Each day, their children come home brimming with new ideas, excited to share with their parents what they’ve learned.
When Constantine and his wife learned about the South Carolina Supreme Court’s ruling and the Department’s subsequent policy change, they were shocked. Their children had made enormous progress at a school they attended for less than a year, but now that progress was being threatened. After getting a taste of a better education, their kids were now at risk of being sent to a school that is not the best fit for them. If Constantine can’t use the scholarships to pay for tuition, he will likely have to withdraw some or, more likely, all his children from their private school.
If Constantine had chosen to homeschool his children, hire a tutor for them, or pay the tuition and fees of an out-of-district public school, he would be able to use the scholarship to pay for the attendant expenses. But simply because he, like Yamilette, chose to enroll his children in a private school, South Carolina has barred him from using the ESTF Program to pay for their education. Like Yamilette, he has been penalized for how he has chosen to educate his children.
The Legal Claims
South Carolina, like 37 other states, has what is known as a Blaine Amendment. 5 These constitutional provisions, named after Sen. James Blaine who advocated for the policy in the late 1800s, generally restrict public monies from going to the aid or benefit of religious schools. The South Carolina Blaine Amendment, however, is more expansive, reaching all private schools, religious or not. The Amendment provides that the state may not spend money “for the direct benefit of any religious or other private educational institution.” 6
In September 2024, the South Carolina Supreme Court interpreted the Amendment to reach use of scholarship funds for private school tuition and fees, but not the many other uses that the ESTF Program permits, such as tuition and fees for out-of-district public schools; textbooks, curriculum, and instructional materials used for homeschooling; tutoring services; and computers and other technology used for educational purposes. 7 In turn, the state Department of Education adopted a policy that allows recipients to use scholarships for virtually any kind of education for their children—so long as it is not a private school education.
The Department’s policy, even if mandated by the state constitution, violates the federal Constitution. For more than a century, the U.S. Supreme Court has held that the Due Process Clause of the Fourteenth Amendment protects a parent’s right to direct the education of her children. 8 This “fundamental” right, as the Supreme Court has described it, 9 includes the right of parents to send their children to a private school. 10 Yet South Carolina is discriminating against parents who exercise that right, excluding the costs associated with such an education from an otherwise generally available public benefit program that can be used for virtually any other educational expense. Worse, it does so for no other reason than that the state constitution singles out private schools for disfavored treatment. The Fourteenth Amendment’s Due Process Clause does not countenance a state’s penalizing a parent’s exercise of her fundamental, federal constitutional right.
The state’s policy also violates the Equal Protection Clause of the Fourteenth Amendment. This clause, the U.S. Supreme Court has held, prohibits a state from “declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government.” 11 Yet that is precisely what South Carolina has done. It has decided to fund the educational choices of citizens except those who choose a private school for their child. Making it more difficult for this group of citizens—a group defined by their exercise of a fundamental, federal constitutional right, no less—to obtain a public benefit is “a denial of equal protection of the laws in the most literal sense.” 12
Third, some on the Supreme Court have suggested that the right to direct the education of one’s children enjoys substantive protection in the Privileges or Immunities Clause of the Fourteenth Amendment, rather than (or in addition to) its Due Process Clause. 13 Regardless of which clause is the appropriate source of protection, South Carolina’s policy violates the right.
Yamilette and Constantine are challenging the Department’s policy at the South Carolina Supreme Court. While lawsuits are generally filed in trial court, the Court allows an exception for cases that are in the public interest. This is such a case. The Department adopted its policy in response to a decision from the South Carolina Supreme Court, in which it held that the state constitution does not permit scholarships to be used for private school education. Yet the Court did not address the conflict that such an application of the state constitution creates with the federal Constitution. This case presents that issue squarely to the Court and argues that a state may “not give effect” to a state constitutional provision that clashes with the federal Constitution. 14
Case Team
Institute for Justice Educational Choice Attorney David Hodges and Senior Attorney Michael Bindas represent Yamilette and Constantine in this lawsuit. Matthew Cavedon of Amagi Law serves as local counsel.
About IJ
IJ is the nation’s leading law firm defending educational choice programs and expanding educational access and opportunity. Since its founding in 1991, IJ has successfully represented parents in educational choice lawsuits in numerous state supreme courts, intermediate courts of appeal, and trial courts, as well as four times at the U.S. Supreme Court (Zelman v. Simmons-Harris, Arizona Christian School Tuition Organization v. Winn, Espinoza v. Montana Department of Revenue, Carson v. Makin). IJ is currently challenging a regulation in Massachusetts that bars children whose parents have enrolled them in private schools from receiving special education services at their schools. IJ is also currently defending educational choice programs in Alaska, Ohio, Tennessee, and Utah.
