Six public school parents, along with the South Carolina State Conference of the NAACP and The South Carolina Education Association, filed a lawsuit today asking the South Carolina Supreme Court to strike down a recently enacted private school voucher program, which drains scarce state resources that should be used for the public schools that 90 percent of students attend and violates crucial protections in the state constitution, including a prohibition against directing public funds to private schools.

The law creating the Education Scholarship Trust Fund voucher program, known as Senate Bill 39, was passed earlier this year by the South Carolina Legislature. It would devote millions of dollars in state tax revenue to pay for tuition at private schools. Private schools that take public dollars under the program are not subject to the same academic, health, and safety requirements as public schools, and are permitted to discriminate against students based on factors such as disability, religion, sexual orientation and gender identity, and past academic performance.

“Our public schools already lack sufficient resources, so it makes no sense to use school vouchers to divide our limited state funds between public schools and unaccountable private schools,” said plaintiff Candace Eidson, parent of a student in Greenville County Public Schools. “Unlike public schools, which serve all students, the private schools that receive voucher funds are allowed to choose which students they will serve and can engage in discrimination that would never be allowed in public schools. As a mother of a child who has autism, I fear my child and others like her will be negatively impacted by this program.”

Sherry East, President of The South Carolina Education Association and a high school science teacher from Rock Hill, agreed. “Our constitution reflects a binding commitment that the resources of our state be used to fully fund our public schools, which serve all students. Instead of private school vouchers, we should invest in our public schools by reducing class size, addressing the teacher shortage crisis, and increasing parental involvement. S.39 represents yet another failure by our legislature to live up to its constitutional duties. It cannot go unchallenged.”

“It is unacceptable to send public dollars to schools that discriminate against children and families,” said Brenda Murphy, President of the South Carolina State Conference of the NAACP. “In addition to violating our state constitution, we know that vouchers exacerbate school segregation, harm educational outcomes, and undermine our public schools.”

The plaintiffs in the lawsuit, Eidson v. South Carolina Department of Education, contend that the voucher program violates numerous provisions of the South Carolina Constitution:

• First, Article XI, § 4 of the South Carolina Constitution prohibits the use of public funds for the direct benefit of private schools. In violation of this clear limit, S.39 requires the South Carolina Department of Education to transfer public funds to private schools for their direct benefit.
• Second, by paying for the education of certain South Carolina students in private schools that are not free of charge nor open to all, the voucher program violates the requirement in Article XI, § 3 of the constitution that the State provide for the education of its children through a “system of free public schools open to all children” or other public educational institutions.
• Third, the voucher program violates Article X of the South Carolina Constitution because it uses public funds without a sufficient public purpose, as the private schools funded by the program are not required to provide clear educational benefits in exchange for receiving public funds and may discriminate in their operations.
• Fourth, S.39 charges the state Superintendent of Education with administering and overseeing the voucher program, impermissibly expanding the authority of the office of the Superintendent beyond its sole, constitutionally defined role as head of the public education system.

In 2020, Governor Henry McMaster’s attempt to use federal COVID aid to fund a private school voucher program was struck down by the State Supreme Court because it violated the constitutional prohibition on the use of public funds to benefit private schools. Despite that clear ruling, the Legislature passed S.39, which would divert significantly more state funding directly to private schools. The plaintiffs in the lawsuit have asked the Supreme Court to assume original jurisdiction over the case and once again strike down a voucher program that violates straightforward constitutional requirements.

The plaintiffs are represented by lawyers from the National Education Association; Education Law Center, which directs the Public Funds Public Schools campaign that works to ensure public funding is used to maintain and support public schools; the South Carolina State Conference of the NAACP; and the South Carolina firms Nickles Law Firm, LLC, and Tinkler Law Firm, LLC.