BY STEVE NUZUM
“No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.”
South Carolina’s public school system’s real issues are many, undeniable, and well-documented.
The state is, perhaps not coincidentally, coming off a multi-year streak of record-breaking numbers of teachers leaving the profession, and of unfilled educator vacancies (a streak that may have only been “broken” in the sense that the state’s districts have been eliminating positions). Teacher vacancies today still outstrip pre-pandemic highs, while the average class size likely increased this year due to districts eliminating and consolidating teaching positions.
State officials have responded to divisive culture wars over academic content by deliberately inflaming them. Legislature passing a proviso several years in a row during the budget process (after failing to pass a clean bill doing the same during session) banning “tenets” which have been inaccurately tied to “Critical Race Theory,” a State Board regulation that requires the Board to consider parental challenges to books, but which doesn’t require anyone to actually read the books to find out if the challenges are merited.
In a recent state Education Committee hearing on a bill designed to use state Education Lottery to pay for private school tuition, Senate Education Chair Greg Hembree bemoaned the “worn-out narrative that we underfund public schools” i But according to the National Center for Education Statistics, South Carolina ranks roughly 35th in the country in per-pupil funding (behind Louisiana and Kentucky, which rank better in cost of living than South Carolina). Eleven years ago, the state Supreme Court ordered the General Assembly to better fund its public schools; that never happened, and in 2017 the court vacated that order, basing its ruling on an opinion by Justice Kittredge, who was one of the votes supporting South Carolina’s previous school voucher bill, which was nonetheless ruled unconstitutional.
Priority: Neo-Vouchers
And yet despite these many longstanding problems facing South Carolina students, families, and educators, the Senate and House have both signaled that their number-one priority is responding to last year’s clear decision from the Supreme Court (once again) that vouchers violate the state’s constitution, with yet another attempt at finding a loophole in the clear intent of that document.
For the past several years, South Carolina, like other states, has crafted a variety of schemes to bypass both the unconstitutionality of traditional vouchers and the widespread unpopularity of vouchers with the general public (across party lines). (Here, “crafted” generally means that they have copied and pasted model legislation from organizations like the American Legislative Exchange Council, a pro-corporate “bill mill” responsible for controversial legislation like “Stand Your Ground” laws, and a major backer of private prisons and lax corporate oversight.)
These “neo-voucher” laws are designed to use state funds to fund private schools-- the thing the South Carolina constitution explicitly forbids-- in a way which might get past the courts on a technicality. For example, Governor Henry McMaster’s SAFE Grants attempted to use federal Covid relief money to create “scholarships” for private schools. In Adams v McMaster, the state Supreme Court wasn’t buying it; because the federal funds went into the state’s coffers, the Court said, they were state public funds, and calling the vouchers “scholarships” didn’t mean they weren’t direct aid to private schools.
Similarly, in September Eidson v South Carolina, the Court’s majority struck down the portions of a neo-voucher law that, again, used state funds to pay for private school tuition.
The latest attempt at neo-vouchers in South Carolina
And yet the Senate Education Committee got started on yet another neo-voucher bill, S. 62, just two months later, before the current legislative session even started, meeting in late 2024 after the end of the previous session, and then bypassing public comment to take the bill straight to the Senate floor. There, even opponents have acknowledged it will likely pass due to the Republican supermajority in the legislature.
This newest attempt to pass a voucher bill which can survive a Court challenge copies most of the language from the act that was struck down in part by the Court, with some key changes that both seek to get around the constitutional prohibition and have the effect of making it both broader and potentially more discriminatory.
Funding discrimination with state money
S. 62 removes previous language that prevented discrimination against students “on the basis of race, color, or national origin”. (It is significant that even that previous act did not prohibit discrimination based on gender, sexual orientation, or religion, as many private schools which qualified for and received neo-voucher funds under the previous act have policies that explicitly discriminate on the basis of LGBTQ+ identity, pregnancy status, and/ or religion.)
A handout for wealthier families
The bill also expands eligibility for the neo-voucher funds significantly. Whereas proponents of the original act often claimed it was intended to benefit lower-income students (a questionable claim given that the majority of voucher recipients in other states already attended private schools before receiving a state subsidy), the new language expands eligibility to families making 600% of the federal poverty level. This means that, using 2024 numbers, a family of four making $187,200.00 per year would qualify for up to $8,500 per year in voucher subsidies, per student (according to the Department of Health and Human Services).
Getting around the prohibition against using public funds… by using different public funds.
And perhaps the most significant change is in the funding source: S. 62 seeks to use South Carolina Education Lottery funding to pay for neo-vouchers. The idea that this is constitutional seems dubious at best, given that According to the SC Education Lottery Act, the Lottery Commission, which administers the funds, is “deemed to be a public commission and an instrumentality of the State”.
But perhaps the most galling thing about the bill is not that it is unconstitutional, or that it is likely to primarily function as an unregulated government handout for wealthier families, but that it comes at at time when the General Assembly still refuses to fully fund public schools, when it continues to take actions that make it harder for teachers to teach and for librarians to select books, and when it continues to ignore the many obstacles which disproportionately impact South Carolina students.
As Senator Brad Hutto remarked during one of the committee hearings on S. 62, “I wish we were talking about things affecting the 750,000 [public school students] rather than focusing on 15,000 [potential neo-voucher recipients”.
For more information on school vouchers, please see this information packet from a coalition of South Carolina pro-public education groups, this piece from SC-ACLU, or this explainer from The SCEA.