South Carolina
The South Carolina Supreme Court’s recent decision in Adams v. McMaster suggests that traditional scholarship, or voucher, programs will not pass muster under South Carolina’s Blaine Amendment because the Court considers such programs to constitute “direct” aid to private and religious schools under South Carolina’s Blaine Amendment. Sadly, this recent decision ignores the fact that in 1973 South Carolina amended its Blaine Amendment by eliminating the ban on “indirect” funding of private educational institutions which was intended to allow public funds to be used to assist students who independently choose to attend private educational institutions. The good news, however, is that tax credit scholarship programs and publicly funded education savings account programs remain viable options for South Carolina policymakers. Any publicly funded education savings account program should be designed to give parents maximum flexibility in the use of their education dollars, including using the funds to educate their children at home instead of enrolling in a nonpublic school.
Constitutional Provisions
Blaine Amendment
“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.” South Carolina Const. Ann. Art. XI, § 4.1
Education Article
“The General Assembly shall provide for the maintenance and support of a system of free public schools open to all children in the State and shall establish, organize and support such other public institutions of learning, as may be desirable.” South Carolina Const. Ann. Art. XI, § 3.
Relevant Case Law
Adams v. McMaster, Appellate Case No. 2020-001069 (S.C. 2020)
The South Carolina Supreme Court rejected the governor’s SAFE Grants program that would have used federal monies for children to help families pay tuition at a designated list of private schools. The court held that the program violated the state’s Blaine Amendment because, by law, it directly funded private schools and was not a program of true private choice since only a certain number of schools were eligible. The court also rejected the child benefit theory.
Durham v. McLeod, 192 S.E.2d 202, 204 (S.C. 1972)*
The South Carolina Supreme Court held that using public money to guarantee student loans for students attending private schools did not violate South Carolina’s Blaine Amendment because the program is religiously neutral and supports higher education, not institutions of higher education. It was on that basis that the Court distinguished its holding in Hartness v. Patterson.
* This case was decided under a since-repealed version of the South Carolina Blaine Amendment that had prohibited “direct or indirect” aid to parochial schools.
Hartness v. Patterson, 179 S.E.2d 907 (S.C. 1971)*
The South Carolina Supreme Court held that giving public tuition grants to students attending private schools violates South Carolina’s Blaine Amendment because there can be no distinction between giving money to students for tuition and giving money to institutions.
* This case was decided under a since-repealed version of the South Carolina Blaine Amendment that had prohibited “direct or indirect” aid to parochial schools.
S.C. Att’y Gen., 2018 WL 1160076 (Jan. 18, 2018)
An educational tax credit program does not violate the state constitution.
S.C. Att’y Gen., 2011 WL 1444725 (Mar. 21, 2011)
The Education Opportunity Act (tax credits and scholarships for students to attend private schools) would be constitutional if passed.
S.C. Att’y Gen., 2007 WL 419435 (Jan. 9, 2011)
Publicly funded pre-kindergarten in private schools is constitutional.
S.C. Att’y Gen., 2003 WL 21043491 (Apr. 29, 2003)
The South Carolina attorney general concluded that using lottery funds to contract with private schools to provide education for low-income, educationally disadvantaged students complied with South Carolina’s Blaine Amendment because the program was religiously neutral, was explicitly intended to help students, had findings to support that purpose, gave money through contracts rather than outright grants, and limited the manner in which the money could be spent.
S.C. Att’y Gen., 2003 WL 164474 (Jan. 7, 2003)
The South Carolina attorney general concluded that distributing state lottery funds directly to “historically black colleges”—whether or not they were religious—violates South Carolina’s Blaine Amendment because it is a “direct benefit [to] certain private educational institutions.”
S.C. Att’y Gen., 1998 WL 317593 (May 14, 1998)
A school voucher system would be upheld under the federal Constitution.
S.C. Att’y Gen. (June 5, 1973)
Tuition payments to students at private schools are constitutional, but direct payments to private schools are not.
Existing Private School Choice Programs
Educational Credit for Exceptional Needs Children 2013-14
South Carolina Session Laws Chapter 1B Section 1
Refundable Educational Credit for Exceptional Needs Children
South Carolina Code Annotated Section 12-6-1145
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
