South Carolina’s private colleges, including historically Black schools, will miss out on roughly $12 million in federal coronavirus aid that was set aside for them by the Legislature unless the S.C. Supreme Court intervenes, state leaders were told this week.
The state agency that disperses South Carolina's coronavirus relief no longer believes it can legally distribute that money to private colleges after the state Supreme Court last week blocked Gov. Henry McMaster from directing a separate $32 million in federal coronavirus grants to private K-12 schools.
In a letter that was obtained by The Post and Courier, Department of Administration Director Marcia Adams said her agency would not disperse the money to private colleges unless the Supreme Court clarifies its ruling to clearly allow it.
Adams wrote that the department's outside law firm studied the Supreme Court's prior ruling and concluded that the justices' order prevents directing public money to private colleges as well as private K-12 schools.
The letter casts serious doubt on whether 22 S.C. private colleges — from Bob Jones University in the Upstate to Allen University in the Midlands to Charleston Southern University in the Lowcountry — will get the money they requested for technology upgrades, renovations and new supplies necessary to teach students during a pandemic.
The S.C. House chief budget writer, Rep. Murrell Smith, said he was troubled by the legal opinion, noting lawmakers have directed tuition grants and lottery scholarships to private colleges for years.
"They're hurting, and they need assistance," the Sumter Republican said. "They still have needs. The only way they can fulfill those needs is by raising tuition, which nobody wants to do in this economic uncertainty."
The Department of Administration's letter flummoxed state Sen. Brad Hutto, an Orangeburg Democrat whose son, an attorney, successfully persuaded the Supreme Court to strike down McMaster’s private K-12 school tuition grants program last week.
Hutto said the Department of Administration’s job is to carry out the Legislature’s directives, not hire an outside law firm to question them. In this case, Hutto said, the agency should disperse the coronavirus relief to private colleges as directed by the General Assembly until someone files a lawsuit to challenge those payments.
“It’s confounding to me that they would hire a lawyer to give them an opinion that says, ‘We can’t carry out our duties,’ ” Hutto said. “It is unusual. … There are politics going on here that generated that letter.”
A Department of Administration spokeswoman said the agency is just carrying out its legal duties.
The agency hired the Columbia-based law firm Richardson, Plowden and Robinson in August, when the Department of Administration was named as a party in the Supreme Court case on McMaster's private school program, spokeswoman Kelly Coakley said.
The law firm has advised the Department of Administration that the high court's ruling against McMaster in that case also applies to any other spending of public coronavirus aid on private educational institutions.
Coakley said the Department of Administration would like to disperse the money to private colleges, "but Admin cannot ignore the Court's ruling."
Coakley added that normally the agency would follow the Legislature's orders without question. But she cited a 1945 court case, O'Shields v. Caldwell, in which the Supreme Court ruled that agencies that are directed to spend public money are legally allowed to question the constitutionality of their directives.
McMaster, the state’s former U.S. attorney and attorney general, warned this could happen. Even before the Supreme Court ruled against his tuition voucher plan for private K-12 schools, the Columbia Republican said such a decision could rule out coronavirus relief for private colleges.
Then, last week, the Supreme Court's five justices unanimously determined the governor's tuition grants program amounted to using public funds to directly benefit private schools, which is prohibited by state law. The governor said he would ask the high court to reconsider its decision.
Now, the governor also wants further clarification from the court about whether the ruling impacts funding for private colleges, too, McMaster spokesman Brian Symmes said.
“This is exactly what the governor feared with this ruling,” Symmes said.
Jeffrey Perez, chief executive of the S.C. Independent Colleges and Universities, said he received a copy of Adams’ letter Tuesday afternoon and isn’t certain what to make of it.
“We’re reviewing (the letter),” said Perez, whose group represents 20 private colleges in South Carolina. “I’ve got to get with the presidents, and we’ve got to consider what our options are.”
Smith said he hopes to work with the Department of Administration to find a solution before Dec. 31, the deadline for South Carolina to spend the federal CARES Act money.
Failing to help the state's private colleges would be a disservice to students, he said.
"That's what we're most concerning about," Smith said, "giving people the opportunity to get a college education at a reasonable price."