The South Carolina Supreme Court has unanimously ruled that Governor Henry McMaster’s plan to use $32 million in federal emergency relief funds on private school vouchers violates the state constitution’s ban on diverting public funds to private schools.

In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act to provide 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.

Governor McMaster announced in July that he would earmark two-thirds of his state’s GEER money for vouchers to fund tuition at private schools, rather than using that money to assist financially strapped public schools.

Plaintiffs, including a public school teacher, a school district and the South Carolina Education Association, sued in Adams v. McMaster, charging that the Governor’s voucher program violated the Education Article of South Carolina’s constitution, which forbids using public funds “for the direct benefit of any religious or other private educational institution.”

Public Funds Public Schools and the Southern Education Foundation (SEF) filed an amici curiae (friends of the court) brief supporting the plaintiffs, with Matthew Nickles of Richardson, Patrick, Westbrook & Brickman, LLC serving as pro bono local counsel. The brief argued that Governor McMaster’s public statements and assurances to the U.S. Department of Education confirm he intended the GEER funds to directly benefit private schools. The brief also argued that case law cited by the defendants regarding the First Amendment’s Establishment Clause, which focuses on religious institutions, was not relevant because South Carolina’s constitution prohibits public funding of any private school, religious or secular.

The brief filed by PFPS and SEF also explained that Governor McMaster’s unconstitutional use of GEER funds failed to address the urgent needs of South Carolina students during the pandemic. As noted in the brief, South Carolina expects to lose $643 million in revenue for fiscal year 2021, and the state’s public schools, which serve a significantly higher proportion of poor students and students of color than South Carolina private schools do, will likely experience severe budget shortfalls.

In striking down the voucher plan, the South Carolina Supreme Court held that “the Governor’s allocation of $32 million in GEER funds to support the SAFE Grants [private school voucher] Program constitutes the use of public funds for the direct benefit of private educational institutions within the meaning of, and prohibited by, Article XI, Section 4 of the South Carolina Constitution.”

As the Court eloquently stated, “even in the midst of a pandemic, our State Constitution remains a constant, and . . . the Court has a responsibility to uphold the Constitution.”

The $32 million in GEER funds will now be available to address crucial educational needs caused by the pandemic, within the permitted uses laid out by Congress.

“Now that vouchers are off the table, Governor McMaster should allocate the CARES Act funds to meet the urgent needs of public school students during the pandemic,” said Jessica Levin, Director of the PFPS campaign. “We applaud the South Carolina Supreme Court for making sure that state officials cannot exploit this national emergency to further a pro-voucher agenda or illegally funnel public funds to private schools.”

Ms. Levin and Wendy Lecker, both senior attorneys at Education Law Center, worked on the brief in collaboration with Southern Poverty Law Center and Munger, Tolles & Olson LLP. The three organizations collaborate on the PFPS campaign, which opposes all forms of private school vouchers and works to ensure that public funds are used exclusively to maintain, support, and strengthen our nation’s public schools.