S.C. Supreme Court: Ruling reverses charter case

The possibility of Charleston County School District giving millions of dollars more annually to its charter schools still could become a reality, but the state will have to prove why the district should be treated differently than every other district in the state, according to a S.C. Supreme Court ruling issued Monday.

The high court in a 4-1 decision reversed and remanded the circuit court ruling that dismissed the district's lawsuit against the state. Chief Justice Jean Toal dissented. The Supreme Court did not rule on the critical issue of whether a special law applicable only to Charleston County, Act 189, is constitutional, and that will be up to the circuit court to decide.

Act 189 prohibits the district from denying a charter school anything that is otherwise available to a public school, and some say it means the district is obligated to give charter schools more money for buildings and transportation. That could cost the district millions, and the money likely would come from the pot distributed among the rest of the county's schools. The district has argued that the law is unconstitutional because it obligates the district to do more than general state law requires without justification.

"I think a huge victory would've been to get this over with," said attorney Peter Wilborn, who represented the district. "We believe we'll prevail. We have a road map in the Supreme Court's decision that makes this clear to us, and sooner or later, Act 189 will be unconstitutional."

Attempts to obtain comment from attorneys representing the state were unsuccessful. The state argued Act 189 was permissible, and they pointed to laws that give the General Assembly power to create special legislation regarding education. But the Supreme Court said in its opinion that argument isn't enough; lawmakers must be able to make a substantial distinction with the issue they're legislating and the people or places affected.

Wilborn said the court's ruling took away the state's main argument against the district, and now the state must figure out what substantial difference exists between Charleston and the rest of the state that has relevance to charter schools, he said. And saying, for example, the district has constituent school boards wouldn't be enough because they don't have any say-so over charter schools, he said.

"Act 189 is incredibly burdensome, and it's really unfair to Charleston, and we're just trying to make sure that the potential unfairness is prevented," he said. "We think we're on track to do that. We're not celebrating a victory over charter schools; this has little to do with school choice. Act 189 is an aggressive and unnecessary piece of legislation."

Charleston County school leaders decided in October 2008 to sue the state to find out what Act 189 meant in terms of its obligation to charter schools, and it's been involved in lawsuits on that issue since then.

School Board Chairman Chris Fraser said there's little the school board can do at this point, but he's glad the circuit court will hear the case. He said he hopes it will answer the question about what the district is required to provide to charter schools.

"This will be years in the making," he said.

Reach Diette Courrégé at 937-5546.