South Carolina Supreme Court Strikes Down School Choice Program for Low Income Families

The South Carolina State House in Columbia on May 16, 2023. Logan Cyrus/AFP/Getty Images

The South Carolina Supreme Court has ruled that a key part of the state’s school voucher program is unconstitutional, halting an attempt to help low income families with private school tuition.

The court’s 3–2 decision, issued on Sept. 11, found that the Education Scholarship Trust Fund (ESTF) Act violates the state Constitution by directing public funds to private educational institutions.

“We hold today petitioners have demonstrated there is no factual application where it is constitutional for ESTF funds to be used for tuition at private educational institutions,” the majority opinion stated.

Signed into law in March 2023 by Gov. Henry McMaster, the ESTF Act allowed up to 5,000 students to receive $6,000 scholarships for educational expenses, including tuition at private schools. The ruling halts these scholarships immediately, forcing some students to reevaluate their educational plans midsemester.

The court found the ESTF Act in violation of Article XI, Section 4 of the South Carolina Constitution, which prohibits public funds from being used for the direct benefit of private schools.

In the majority opinion, Justice Gary Hill objected to a provision of the law that “allows payments from ESTF scholarships for ‘tuition and fees for an approved nonpublic online education service provider or course.’ We also enjoin the Department from disbursing ESTF scholarships for the tuition and fees of nonpublic educational service providers.”

In a dissenting opinion, Chief Justice John Kittredge argued that the ESTF Act provides an indirect, and therefore constitutional, benefit to private schools.

“While public funds are involved,” he wrote, “the funds do not flow directly from the state treasury to private schools ... rather, the ESTF program puts students and their parents in the driver’s seat, for they alone choose where to spend the allotted funds.

“I am firmly convinced the ESTF Act provides an indirect benefit and is facially constitutional,” Kittredge said. He accused the majority of disrupting the legislative process and harming students who were benefiting from the program.

The ruling was made in response to a lawsuit filed by six public school parents, along with the South Carolina State Conference of the NAACP and the South Carolina Education Association (SCEA), in October 2023. The plaintiffs argued that the law was unconstitutional because it allowed the use of public funds for the benefit of private schools.

“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,” Candace Eidson, a Greenville County Public Schools parent and one of the plaintiffs in the case, said at the time the lawsuit was filed.

SCEA President Sherry East added, “Our constitution reflects a binding commitment that the resources of our state should be used to fully fund our public schools, which serve all students. [The ESTF Act] is a clear violation of our state Constitution. It cannot go unchallenged.”

Supporters of the ESTF Act, such as state Rep. April Cromer, a Republican, vowed to continue advocating for school choice.

“Today’s ruling from the SC Supreme Court is deeply disappointing. This decision represents a setback for families across our state who deserve greater choice & opportunity when it comes to their children’s education,” she wrote in a post on X.

South Carolina’s governor also expressed frustration with the ruling, saying in a statement that the court’s decision “may have devastating consequences for thousands of low-income families who relied on these scholarships for their child’s enrollment in school last month.”

McMaster also warned that the ruling could impact other state-funded educational programs, including 4-year-old kindergarten and scholarships for students attending historically black colleges and universities.

“For these reasons, and more, we will request the court to expeditiously reconsider this decision—so that the children of low-income families may have the opportunity to attend the school that best suits their needs,” the governor said.