Dan King
Dan King · February 1, 2024

ARLINGTON, Va.—Today, the Partnership for Educational Choice—a joint project of the Institute for Justice (IJ) and EdChoice to advocate and defend educational choice nationwide—filed an amicus brief in the South Carolina Supreme Court, seeking to defend the state’s Education Scholarship Trust Fund (ESTF) Program against a lawsuit brought by the state teachers’ union and other plaintiffs.  

South Carolina’s ESTF Program provides families with publicly funded savings accounts, capped at $6,000, that can be used to pay for a wide range of educational goods and services. The goods and services include tuition for an education service provider; fees for national exams, such as advanced placement exams; tutoring services approved by the Department of Education; fees for college admission exams or industry certification exams; and therapies and other services for students with disabilities. 

“South Carolina’s ESTF Program is set to benefit thousands of South Carolina schoolchildren by allowing their parents to access the services that best meet the unique needs of their children,” said IJ Educational Choice Attorney David Hodges. “Efforts to undermine this program would directly harm the families who will reap the benefits of this program.” 

In their lawsuit challenging the program, the plaintiffs claim that the ESTF violates Article XI, Section 4 of the South Carolina Constitution, which prohibits public funding for “the direct benefit of any religious or other private educational institution.”   

The brief filed by the Partnership for Educational Choice makes two arguments that defend the constitutionality of the educational choice program:  

  1. Because the program permits families to spend their account funds on a wide variety of educational expenses, none of which must be related to a private school, the program does not provide “direct” benefits to private schools. Thus, the program is constitutional under the South Carolina Constitution. 
  1. If the South Carolina Supreme Court were to apply Article XI, Section 4 to bar the legislature from providing financial aid to private school students, it would violate United States Supreme Court precedent protecting the right of parents to direct their children’s education.   

“The ESTF Program is not only a huge benefit for South Carolina students, but also perfectly constitutional,” said IJ Senior Attorney Michael Bindas. “The program aids students, not schools, and simply empowers parents to exercise their fundamental federal constitutional right to direct the education of their children.”  

“Over fifty years ago, South Carolinians amended their constitution to permit government spending that might incidentally benefit private institutions,” said EdChoice Vice President and Director of Litigation Thomas Fisher. “Since then, South Carolinians have benefited from publicly funded programs that incidentally benefit those institutions. This program is no different from those programs and should be treated as such under the South Carolina Constitution.”  

The ESTF Program is designed to grow for each of the next three years, and is specifically targeted to students who are considered in need under the program’s eligibility criteria.