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SAFE grants debate awaits constitutionality ruling

Molly Hulsey //August 19, 2020//

SAFE grants debate awaits constitutionality ruling

Molly Hulsey //August 19, 2020//

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Gov. Henry McMaster looks on as S.C. School Superintendent Molly Spearman gives a speech on PPE distributed to school districts. (Photo/Molly Hulsey)As the dispute over the use of COVID-19 funding for private school tuition awaits potential S.C. Supreme Court review, both parties agree that the question boils down to whether the state-allocated grants are used as a direct or indirect contribution to private schools.

Case plaintiff Thomasena Adams, an educator from Orangeburg, challenged Gov. Henry McMaster and advocacy group Palmetto Promise Institute on the grounds that the $32 million slotted for McMaster’s Safe Access to Flexible Education Fund violated the S.C. constitution, which states that public funding cannot be used “for the direct benefit of any religious or other private education institutions.”

The SAFE grants, sourced from Coronavirus Aid, Relief and Economic Security Act monies in the Governor’s Emergency Education Relief Fund, were expected to cover private school tuition for more than 5,000 families with an adjusted gross income of 300% or less of the federal poverty level until an Orangeburg judge blocked the program on July 22.

“This is up to the parents. It’s the parent’s choice,” McMaster told GSA Business Report, adding the funding directly benefits the parents, many who work two jobs to put their children through non-public schools. “It’s similar to what we do with First Steps with the state tuition grants agency, both of which have operated under the same rules as this for years without challenge.”

Ellen Weaver, president and CEO of Palmetto Promise Institute, also underscored that parents are the direct beneficiaries of the program and that claims brought up by the plaintiff during the July 29 hearing had little bearing on the constitutional question of direct or indirect funding.

“When you look at choice programs, both in South Carolina and many other states around the country, courts have held consistently that programs like this are not direct support to a private school, because there is an intervening parent choice or student choice that happens to direct those funds,” she said.

The funding is not a direct subsidy from the state, she said, but is something that already happens through the state’s Child Development Education Pilot Program for at-risk pre-K students and also through tuition-grant programs in higher education.

The state constitution once halted any direct or indirect state funding to private schools, but the indirect provision has since been nixed.

“I would argue that the plaintiff’s case is materially incomplete,” Weaver told GSA Business Report. It does not reference any case law subsequent to 1972, when the constitution of South Carolina was amended specifically to permit programs like this.”

While Adams’ memos note that public school students in Greenville would receive between 6% to 26% less financial support than those in private schools if the SAFE grants are unblocked, Weaver argued that funding calculations used by the plaintiff didn’t include other CARES act funds directed towards public schools or appropriations made by the General Assembly subsequent to the allocation of Education Stabilization Fund for the Elementary and Secondary School Emergency Relief.

For example, while each Greenville County public school student receives an estimated $250 in CARES Act aid according to the memo, this is in addition to $12,679 used to support an individual Greenville student from the FY 2019-2020 budget, according to a S.C. Department of Education Revenue per Pupil report (.pdf).

An estimated $195 million out of the total $216 million ESSER pool for South Carolina was allocated as subgrants to school districts, according to a report by the S.C. Department of Education.

Weaver also pointed to the $600 million left in the COVID-19 fund — some of it expected to fund education.

“South Carolina spends more than $10 billion annually on public education. That’s $14,383 per student, more than any other Southern state except Virginia and Louisiana. The opposition to modestly priced education-choice programs like SAFE grants has nothing to with what is best for students and everything to do with who will control that $10 billion: parents or central planners,” Weaver said in an Aug. 7 opinion piece in The Wall Street Journal.

On the other hand, Adams’ attorney, Skyler Hutto of Williams & Williams Attorneys, noted that the SAFE grants program directly sends funds to schools before they are distributed to parents in need.

“Here’s the crux of what’s going to happen as far as a practical transfer of money: the state is going to send money directly from its treasury or another fund … to the school,” Hutto said. “They’re claiming that even though the transfer of funds is direct, that benefit of the funds is not direct. I don’t think they dispute that the money goes directly from one source to the other. 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.”

He noted that other states’ programs have offered private school tax breaks, which could be seen as indirect funding, but with SAFE grants, that is not the case.

Hutto said he had based the funding gap mentioned in the memo on an affidavit (.pdf) from Kaitlyn Nilges, an attorney from the S.C. Department of Education, that outlined the headcount of students and ESSER funding per district.

“Our issue is not with things like scholarships for higher education. It’s with the prospect that there is emergency funding on the table that by the terms of the CARES Act is meant for public schools and educational institutions and it’s not being spent that way,” he said.