Lawsuit challenges S.C. private school voucher program

A push to give South Carolina families public dollars to send their kids to private schools could be on the governor’s desk soon.
Published: Oct. 26, 2023 at 1:23 PM EDT|Updated: Oct. 27, 2023 at 6:41 PM EDT
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COLUMBIA, S.C. (WRDW/WAGT) - A lawsuit was filed Thursday asking the South Carolina Supreme Court to strike down a recently enacted private school voucher program.

The plaintiffs – six parents, the South Carolina State Conference of the NAACP and the South Carolina Education Association – claim the program drains state resources that should be used for the public schools that 90% of students attend.

The plaintiffs also say the program violates protections in the state constitution, including a prohibition against directing public funds to private schools.

The law creating the Education Scholarship Trust Fund voucher program, known as Senate Bill 39, was passed earlier this year by the South Carolina Legislature.


It would devote millions of dollars in state tax revenue to pay for tuition at private schools.

Private schools that take public dollars under the program are not subject to the same academic, health and safety requirements as public schools, the plaintiffs said.

Also, those schools “are permitted to discriminate against students based on factors such as disability, religion, sexual orientation and gender identity, and past academic performance,” the plaintiffs said in a news release.

The plaintiffs in the lawsuit, Eidson v. South Carolina Department of Education, contend the voucher program violates numerous provisions of the South Carolina Constitution:

  • First, Article XI, § 4 of the South Carolina Constitution prohibits the use of public funds for the direct benefit of private schools. In violation of this clear limit, S.39 requires the South Carolina Department of Education to transfer public funds to private schools for their direct benefit.
  • Second, by paying for the education of certain South Carolina students in private schools that are not free of charge nor open to all, the voucher program violates the requirement in Article XI, § 3 of the constitution that the State provide for the education of its children through a “system of free public schools open to all children” or other public educational institutions.
  • Third, the voucher program violates Article X of the South Carolina Constitution because it uses public funds without a sufficient public purpose, as the private schools funded by the program are not required to provide clear educational benefits in exchange for receiving public funds and may discriminate in their operations.
  • Fourth, S.39 charges the state Superintendent of Education with administering and overseeing the voucher program, impermissibly expanding the authority of the office of the Superintendent beyond its sole, constitutionally defined role as head of the public education system.

In 2020, Gov. Henry McMaster’s attempt to use federal COVID aid to fund a private school voucher program was struck down by the State Supreme Court because it violated the constitutional prohibition on the use of public funds to benefit private schools.

The Legislature then passed S.39, which would divert significantly more state funding directly to private schools. The plaintiffs in the lawsuit have asked the Supreme Court to assume original jurisdiction over the case and once again strike down a voucher program that violates straightforward constitutional requirements.

Gov. Henry McMaster, a supporter of the program, is confident it’ll hold up in court.

“This money is going to the families and to the parents, not to the schools,” McMaster said.

The governor says the program gives families the financial assistance they need.

“One size never fits all, so we have to allow people, allow parents to do what is best for their children, and then we have to provide the best,” the governor said.

However, plaintiff Candace Eidson, parent of a student in Greenville County Public Schools, said:

“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. Unlike public schools, which serve all students, the private schools that receive voucher funds are allowed to choose which students they will serve and can engage in discrimination that would never be allowed in public schools. As a mother of a child who has autism, I fear my child and others like her will be negatively impacted by this program.”

Sherry East, President of the South Carolina Education Association and a high school science teacher from Rock Hill, agreed.

“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,” she said. “Instead of private school vouchers, we should invest in our public schools by reducing class size, addressing the teacher shortage crisis, and increasing parental involvement.”

“It is unacceptable to send public dollars to schools that discriminate against children and families,” said Brenda Murphy, president of the South Carolina State Conference of the NAACP. “In addition to violating our state constitution, we know that vouchers exacerbate school segregation, harm educational outcomes, and undermine our public schools.”