COLUMBIA, S.C.—Today, a pair of South Carolina parents teamed up with the Institute for Justice (IJ) to file a petition that seeks to restore South Carolina’s Education Scholarship Trust Fund (ESTF) program so that children from low-income families can use the scholarships to attend private schools. The lawsuit, filed in the South Carolina Supreme Court, challenges the federal constitutionality of a state Department of Education policy that prohibits parents from using their children’s scholarships to pay for tuition at private schools. The Department maintains that the policy is mandated by a provision of the South Carolina Constitution, as recently interpreted by the state’s supreme court, but the lawsuit filed today argues that applying the state constitution to target and penalize private school families violates the Constitution of the United States.  

“Because of this prohibition, five thousand low-income families lost the ability to use their scholarships to attend private schools,” said IJ Educational Choice Attorney David Hodges. “This is a travesty not only for these children, but for the rule of law. These education scholarships were meant for every family—not every family except the ones who choose a type of education that the state constitution disfavors.”  

South Carolina’s ESTF program was created in 2023. The program gives thousands of qualifying, low-income families a $6,000 scholarship that parents can use to purchase educational expenses. When the program was created, qualifying expenses included, among other things, tuition and fees at public and private schools, textbooks and curriculum for homeschooling, tutoring, school supplies, therapies, exams, and extracurricular activities, as well as any other educational expense approved by the Department of Education.  

Once the program was signed into law, parents like Yamilette Albertson of Bluffton and Constantine Shulikov of Moore jumped at the opportunity to use the funds to send their children to private schools that better fit their educational needs than the public schools in which they were enrolled. But due to the Department of Education’s policy, the quarterly payments cannot be used on tuition anymore. 

“It feels like I’ve had the rug pulled out from under me,” said Yamilette, a Marine veteran who used funds from the program to enroll her 17-year-old daughter and 6-year-old twin sons in a private school. “My kids are succeeding in subjects that they used to struggle in, but without the scholarship money, I’m not sure how I’m going to afford tuition.” 

Yamilette is the sole income provider in her household. In addition to providing for her three children, she takes care of her 65-year-old father who recently moved in due to chronic health issues, including cancer. Yamilette felt her daughter’s original public school was below her expectations. Now, her daughter is succeeding in class and receiving support to pursue higher education. Yamilette’s daughter is so passionate about the education she’s receiving that she offered to get a job at a shoe store to help pay for her brothers to also attend the school, as well. 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. With the new policy in place, however, all of that is in jeopardy. 

South Carolina, like 37 other states, has what is called a “Blaine Amendment.” These amendments, named after former Maine Sen. James Blaine, typically restrict public funds from being used for the “aid” or “benefit” of religious schools. However, South Carolina’s Blaine Amendment goes much further than those in other states and bans public funds from being spent “for the direct benefit” of any private school, regardless of religion. It is this provision, as interpreted by the South Carolina Supreme Court, that the South Carolina Department of Education is now using to justify its ban on use of the ESTF Program to pay for private school tuition and fees.  

IJ’s lawsuit argues that the state’s application of its Blaine Amendment is unconstitutional under two landmark United States Supreme Court cases: Meyer v. Nebraska, which recognized the right of parents to direct the education of their children; and Pierce v. Society of Sisters, which held that this right includes the right to send one’s children to a private school. 

“South Carolina allows low-income families to use their scholarship funds on virtually any type of educational expense, public or private, except one: tuition at a private school,” said IJ Senior Attorney Michael Bindas. “The state is penalizing parents who choose private schools for their children, a choice protected by the U.S. Constitution. The state cannot point to the South Carolina Constitution as justification for this discrimination, because the federal Constitution prohibits it.” 

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. IJ is currently challenging discriminatory laws based on similar Blaine Amendments in Massachusetts and Alaska. Matthew Cavedon of Amagi Law serves as local counsel in this case.