COLUMBIA, S.C. — The South Carolina Supreme Court heard arguments Wednesday on whether a law passed last year allowing parents to spend taxpayer money on private schools violates part of the the state constitution banning direct aid to anything other than public schools.
But even as the justices ponder the case, lawmakers in the House are looking to expand the program beyond the law's provision for vouchers of up to $6,000 for up to 15,000 students a year.
The case centers on the part of the South Carolina's constitution that says “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."
Lawyers who think the program is illegal said giving the private schools public money is a direct benefit even if the program allows students to pay fees or transportation to attend a public school outside of their district.
“It’s all in a trust fund – it’s all in a state controlled trust fund," attorney Ramya Ravindran told the justices.
But supporters of the new law said the trust fund is key. The money goes to parents, who get to make a decision on where to spend it instead of state government directly paying the private schools themselves.
“The Rosetta Stone of this case is to figure out who the direct beneficiary is,” said Jim Gilliam, an attorney for Republican House Speaker Murrell Smith.
Smith last week proposed a bill that would make the program open to all students, eliminating by 2027 what was going to be a $120,000 family income cap and a cap on 2% of the school age population, or about 15,000 students.
The bill that would also eliminate state audits for private schools getting the money and not require them to give their students the same standardized tests as public school students as a comparison passed a subcommittee Tuesday and will likely head to the House floor Thursday.
Senate Majority Leader Shane Massey said last week he wants to see what the state Supreme Court says and give the program some time to operate before changing things.
“Before you look at expanding it, you need to makes sure this one is going to work,” Massey said.
The law is part of a nationwide movement. Groups that study the programs report that as many as 16 states have some form of the vouchers.
A second possible problem with the South Carolina law for supporters is the law has the state Education Superintendent running the program. The constitution calls her the “chief administrative officer of the public education system.” The state says that doesn't prohibit her from expanding her duties.
“How can the legislature require that individual get involved in private education?" asked James Lockemy, a retired Court of Appeals chief judge sitting in on this case.
Allowing parents to spend public money on private schools has been a two decade effort that ran through three governors, four House speakers and five education superintendents in a state where Republicans have been consolidating and expanding their power.
The justices Tuesday peppered both sides with questions. Chief Justice Donald Beatty was especially skeptical of the new law, mentioning an earlier state Supreme Court ruling that the governor could not send COVID relief money directly to private schools.
“Obviously, we weren’t convincing then, were we?” Beatty said introducing Wednesday's case.
Later, Education Department attorney Miles Coleman said no private school sees the new money as a benefit when a state agency gets additional oversight and access to their books.
“This money isn’t even enough to cover what we think is the cost as a state of education. It’s not some sort of largess or boon to the recipient,” Coleman said of the program's $90 million price tag.
“$90 million is not a boon?” asked Beatty, who earlier in the arguments said that would be enough money to hire 2,200 public school teachers, adding "yet we want to shift all this money to private schools to keep them afloat.”
The justices made no decision Wednesday and will issue a ruling at a later date.