Private schools suing the state for access to millions of dollars in public funds urged a federal judge to help South Carolina move beyond the "mistakes of its past" by forcing the distribution of the money to dozens of independent schools.
U.S. District Judge Bruce Hendricks heard arguments May 3 in Charleston from the religious institutions requesting a preliminary injunction to bypass the “Blaine Amendment," which bans private schools from receiving public funds.
The amendment, which traces back to 1895, is preventing historically Black colleges and universities and Catholic schools from receiving "fair, equitable access" to COVID-19 emergency relief funding, said Daniel Suhr, attorney for the plaintiffs.
Suhr, an attorney with the Washington, D.C.-based Liberty Justice Center, claims the amendment is racist.
During the hearing, Suhr said he realized it's "no small thing" to ask the court to remove an amendment from the state constitution.
“South Carolina has come a long way since 1895," Suhr said. "But though the state has come a long way, its past is with us still."
The Liberty Justice Center recently filed a lawsuit on behalf of the Roman Catholic Diocese of Charleston, which oversees 33 schools with over 7,000 students across South Carolina, and the S.C. Independent Colleges and Universities nonprofit group that represents 20 schools.
The court's intervention is urgent because religious and historically Black schools stand to lose out on up to $34 million in federal funds in COVID-19 relief aid, set aside for the schools by the governor, if the court doesn't act by May 11, which is the federal deadline for allocation of the money, attorneys wrote in their request for the preliminary injunction.
Named as defendants in the legal action are Gov. Henry McMaster, as well as the executive director of the state Department of Administration and the budget director.
The case is a result of frustration from the state Supreme Court's December decision to reject the governor's plan to spend federal coronavirus money on private school tuition grants, said attorney Thomas Limehouse Jr., representing McMaster.
That decision also put in limbo McMaster's ability to allocate private school vouchers. The governor included $14 million in lottery money to be allocated for private school vouchers in a proposal for the coming year's budget.
The governor received discretionary funds from the federal government's CARES Act to provide pandemic education relief in March 2020. McMaster wanted to give $32 million to private schools to help low- and moderate-income families. He also set aside $2.4 million for eight HBCUs in support of digital education access.
The governor, who disagrees with the Supreme Court's decision, warned the state's highest court of the serious implications the decision could have on independent colleges and universities trying to access money from the CARES Act, Limehouse said. However, the governor has taken an oath to enforce the law, Limehouse said.
Limehouse also argued the plaintiffs have no legal right over the discretionary funds.
“We’re all now stuck with (the Supreme Court's) decision," Limehouse said.
The arguments will be taken into advisement, and the court will proceed in the "next couple of days," Hendricks said.
The religious groups are taking aim at former prominent South Carolina politician Ben “Pitchfork” Tillman and the “Blaine Amendment,” named after U.S. Rep. James Blaine.
Under the guise of safeguarding American values, Blaine and the American Protective Association championed constitutional amendments to bar public funds from “sectarian” schools, plaintiffs said.
Plaintiffs argued the 1895 S.C. Constitution incorporated that provision, according to court records. Plaintiffs said "Pitchfork Ben’s racial bigotry lined up nicely with other delegates’ anti-Catholic bigotry" to produce a bar on taxpayer funds going directly or indirectly to “sectarian” religious institutions, including educational ones.
A Baptist food pantry, a Catholic hospital and a Muslim mosque can all receive taxpayer-funded COVID-19 relief, but not a school or university affiliated with any of those religions, plaintiffs said.