FILE - South Carolina Supreme Court

The South Carolina Supreme Court building in Columbia, S.C.

(The Center Square) – South Carolina’s Supreme Court will hear arguments Friday on the constitutionality of a program that would provide scholarships to enable families struggling financially because of COVID-19 to keep their children in nonpublic schools.

Funded with federal Coronavirus Aid, Relief and Economic Security (CARES) Act dollars, Gov. Henry McMaster’s Safe Access to Flexible Education (SAFE) grant program would provide one-time, need-based grants up to $6,500 to eligible mid- to low-income students to be used toward tuition at their nonpublic schools in South Carolina.

A judge blocked rollout of the program days after it was announced in July. The Supreme Court agreed to hear the case last month.

“The legal question before the court is, under the South Carolina constitution, who's the direct beneficiary of a scholarship program?” said Daniel Suhr, a senior attorney at the Liberty Justice Center. “Who benefits from our school system: is it about children and students or is it about institutions and bureaucracies?”

The Liberty Justice Center will represent the Palmetto Promise Institute, the entity charged with distributing the SAFE grant scholarships, before the state’s highest court Friday.

At the core of the case is a provision in South Carolina’s state constitution known as the Blaine Amendment, which blocks state funds from going directly to religious schools. Such amendments exist in 37 states. South Carolina’s Blaine Amendment was amended in 1973, eliminating the ban on “indirect” funding of private schools, but maintaining the ban on state funds going directly to private schools.

In the Espinoza v. Montana decision earlier this year, the U.S. Supreme Court ruled that Montana’s Blaine Amendment violated Montanans’ right to free exercise of religion under the U.S. Constitution.

“The Supreme Court was very clear in Espinoza that when these Blaine Amendment cases come out, the lower courts need to be cognizant of the history of these amendments and the primary constitutional imperative from the U.S. Constitution, which is that private religious schools are entitled to fair equal treatment under the law,” Suhr said.

Attorneys for the plaintiff, educator Thomasena Adams of Orangeburg, argue the structure of the program violates South Carolina’s constitutional ban on state funds directly funding private education.

“The state is going to send money directly from its treasury or another fund … to the school,” plaintiff attorney Skyler Hutto told the South Carolina Business News. “They’re claiming that even though the transfer of funds is direct, that benefit of the funds is not direct. … It’s our contention that the constitution is pretty straight forward that when you’re getting into that direct transfer of monies, you’re violating this direct benefit proposition that we have codified in our constitution.”

Suhr said the court’s decision in Adams et. al. v. McMaster et. al. will have implications for the future of school-choice programs in South Carolina.

“If the court reaches this question about the meaning of South Carolina's Blaine Amendment, then that absolutely sets to the contours for future programs,” Suhr said.

Ellen Weaver, president of the Palmetto Promise Institute, said scholarships for about 5,000 South Carolina students hang in the balance of the court’s decision, and more than 15,000 families have expressed interest in the program.

“The demand for those scholarships has been absolutely overwhelming,” Weaver said. “We've been touched … by the huge parent response to this program, and we certainly hope that the court will uphold it on Friday.”

Donna Wright, 67, of Winnsboro, unexpectedly lost her husband of 40 years recently, just before the adoption of her great-granddaughter was finalized. Wright chose to send her great-granddaughter to a private school, taking a job in the school cafeteria to make ends meet.

“The choice to send our daughter to private school to give her the best opportunity will continue even with financial hardships,” Wright said. “My financial status was cut three-fourths after my husband’s death ... The SAFE grant has given me a ray of hope!”

Suhr anticipates the Supreme Court will make a decision on the case in a matter of weeks after arguments Friday, given the December expiration date on CARES Act funds.

“I think we've seen in this pandemic more than ever, that families’ situations are unique, and their children's learning ability and interest is also unique, so it's essential that parents have the ability to find the right education fit for their child – whatever that is,” Weaver said. “Nobody is better equipped to make that decision for their child's future than their parents.”

Staff Reporter

Vivian Jones reports on Tennessee and South Carolina for The Center Square. Her writing has appeared in the Detroit News, The Hill, and publications of The Heartland Institute.