Public Funds Public Schools and the Southern Education Foundation (SEF) have moved to file an amici curiae brief supporting the petitioners in a lawsuit challenging South Carolina Governor Henry McMaster’s plan to use federal emergency relief funds to start a private school voucher program. The case, Adams v. McMaster, is currently before the South Carolina Supreme Court.

In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to provide much-needed emergency assistance to states suffering from the effects of the COVID-19 pandemic. CARES Act funding for K-12 schools includes the Governor’s Emergency Education Relief (GEER) Fund, which permits governors to provide support for local education agencies (public school districts), institutions of higher education, or education-related entities, to carry out emergency educational services.

South Carolina received $48 million in GEER funding. Governor McMaster certified to the U.S. Department of Education that he would only use the funds for the purposes permitted by the CARES Act.

But soon after receiving the GEER funding, the Governor announced he would earmark two-thirds of the money—$32 million—to establish the SAFE Grants program, a voucher program to fund tuition at private schools. Rather than shore up financially strapped public schools, the Governor decided to use emergency funds to establish a private school voucher program he has been unsuccessful in advancing through the legislative process.

Following the Governor’s announcement, Dr. Thomasena Adams, a public school educator from Orangeburg County, charged in a lawsuit that the Governor’s private school vouchers violate the Education Article of South Carolina’s constitution, which forbids the use of public funds “for the direct benefit of any religious or other private educational institution." Dr. Adams was subsequently joined by additional plaintiffs, including the Orangeburg County School District and the South Carolina Education Association.

The Court of Common Pleas granted a preliminary injunction blocking the voucher program from going into effect. The South Carolina Supreme Court then agreed to hear the case and continued the preliminary injunction until the justices make a final ruling.

The amicus brief filed by PFPS and SEF highlights several key points. The brief argues that Governor McMaster’s assurances to the U.S. Department of Education, as well as his public statements about his proposed voucher program, confirm he intended the GEER funds to directly benefit private schools. While the Governor now argues the voucher program comports with the constitution because it benefits individual students, the amicus brief points out that the CARES Act prohibits GEER funds to be distributed to individuals.

Additionally, the brief rebuts the case law in the State’s legal brief, which interprets the First Amendment’s Establishment Clause and state constitutional provisions about government support of religion. PFPS and SEF assert that the cited cases are not relevant to the lawsuit before the South Carolina Supreme Court, which challenges the voucher program under South Carolina’s constitutional prohibition on public funding of any private school.

Finally, the brief explains that Governor McMaster’s unconstitutional use of GEER funds fails to address the urgent needs of South Carolina students during the pandemic. South Carolina public schools serve a significantly higher proportion of economically disadvantaged students and students of color than private schools in the state. Also, as a result of the current crisis, South Carolina expects to lose $643 million, or 27.5%, of revenue for fiscal year 2021, causing shortfalls in school budgets statewide.

This case represents yet another attempt to exploit the pandemic to divert funds intended for public schools to private schools. The governors of three other states—New Hampshire, Florida, and Oklahoma—have also declared their intentions to use GEER funds on private school voucher programs. Earlier this month, in a case brought by PFPS on behalf of public school parents, districts, and the NAACP, a federal judge thwarted U.S. Education Secretary Betsy DeVos’ illegal attempt to rewrite the CARES Act to force public schools to funnel more money to private schools.

“During this time of extreme fiscal distress and increasing needs of public school students, it is imperative to safeguard the public education resources necessary for public schools to provide high quality learning experiences while keeping students and staff safe,” said Jessica Levin, PFPS Director.

Oral argument in Adams v. McMaster will take place on September 18 at 12:30 p.m. ET. The argument will be live streamed here: https://www.scetv.org/live/supreme-court-south-car.... Archived videos are available here: https://www.sccourts.org/scvideo/indexArchived.cfm.