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A lawsuit filed in federal district court argues that a provision of the South Carolina state constitution that bars public funds from being used for the "direct benefit" of religious or other private educational institutions should be struck down because it was born out of racist and anti-Catholic animus.

The lawsuit, filed earlier this week, argues that the amendment, which dates to 1895 and was revised in 1972, was "born in bigotry." It argues the amendment “reflected the ugly marriage of two prejudices: religious bigotry against immigrant Catholics then coming to America’s shores and racial prejudice against newly freed slaves whose lives, living conditions, and educational opportunities were being improved by religious missionary organizations.”

South Carolina Independent Colleges and Universities, an association that represents 20 private colleges and universities, joined with the Roman Catholic Diocese of Charleston, which operates 33 K-12 schools, in challenging what’s known as the Blaine Amendment. The colleges contend that the amendment has caused them to lose out on millions of dollars in federal coronavirus relief funds that were funneled through the state government for distribution.

Jeff Perez, president and CEO of South Carolina Independent Colleges and Universities, or SCICU, estimates that the provision has made the state’s private colleges miss out on more than $14 million in federal coronavirus relief funding that was routed through the state government, including $2.4 million that would have been allocated specifically for five private historically Black colleges to upgrade their online education offerings.

“What we’re looking to do is to strike this provision, because No. 1, it’s the right thing to do -- it’s wrong to have this kind of racist and antireligious provision in our constitution,” Perez said. “And No. 2, its legacy is to deprive institutions that are members of my organization from receiving the funding that Congress, that our governor and the General Assembly intended us to receive.”

The colleges and Catholic schools are being represented in the lawsuit by the Liberty Justice Center, a conservative, nonprofit law organization. The suit names several South Carolina officials as defendants, including Governor Henry McMaster, a Republican. The state Supreme Court struck down McMaster's attempts last year to use $32 million in federal COVID relief funds to create one-time grants, known as SAFE grants, to assist families with tuition costs at private schools.

"Nobody fought the SAFE grants lawsuit more vigorously than the governor did, and he still believes it was incorrectly decided," said Brian Symmes, a spokesman for the governor. "Every step of the way, the governor warned that the lawsuit could have far-reaching consequences and unnecessarily prevent these schools and parents from accessing emergency federal funds."

Alex Luchenitser, associate vice president and associate legal director for Americans United for Separation of Church and State, said in an interview that South Carolina’s amendment prohibiting public funds for private educational institutions should be upheld.

“This amendment protects religious freedom and protects taxpayers from being forced to fund instruction in religious beliefs to which they do not subscribe,” Luchenitser said. “It protects public school education by protecting public funds from being siphoned off from public schools to private schools.”

Luchenitser described the lawsuit as “very aggressive” and said it “goes beyond what we’ve seen in other cases in terms of trying to push the boundaries and attack no-aid clauses that protect the rights of taxpayers not to have their funds used for religious education.”

Thirty-eight state constitutions have some kind of no-aid provision barring public money from being used to fund religious institutions or religious education, according to Steven K. Green, the Fred H. Paulus Professor of Law and director of the Center for Religion, Law and Democracy at Willamette University in Oregon.

Green said he was not surprised to see the South Carolina case in the wake of the Supreme Court’s 2020 decision in Espinoza v. Montana Department of Revenue, which addressed a Montana state constitutional provision barring state aid for religious schools. The court ruled in that case that a rule prohibiting students from using scholarships that were established with the help of state tax credits to attend religious schools discriminated against the schools and the families whose children wanted to attend them, in violation of the right to free exercise of religion guaranteed by the U.S. Constitution.

“The court basically gave an open invitation to these kinds of challenges,” said Green, who authored an amicus brief supporting Montana’s defense in the case. “I think we’ll be seeing more of these challenges, but they will become rather fact-sensitive depending on how the state is responding to the claims and the express, specific language of the state constitutional provisions.”

Green said it may be easier for the court to uphold the South Carolina provision because it applies equally to religious and nonreligious private institutions.

“Religious institutions are not being treated differently than other private institutions, which makes the free exercise claim weaker,” he said.

Daniel Suhr, senior attorney for the Liberty Justice Center, said the Espinoza case and a similar 2017 Supreme Court ruling involving a constitutional provision against public funding for churches in Missouri are important precedents for the suit the center is bringing on behalf of the independent colleges and Catholic K-12 schools in South Carolina.

“Those are great decisions for us, but they don’t complete the story in South Carolina, because South Carolina’s amendment discriminates against all independent and religious schools, so it’s not just limited to faith-based schools,” he said. “We feel like we’ve got a great base to start from in precedent, but we need the court in this case to recognize that a more broadly worded Blaine Amendment suffers from the same flaws as the amendments in Missouri and Montana that the Supreme Court has already addressed.”

"We think we are blazing new ground here," Suhr said. "We are excited to tackle this for the first time in South Carolina to help the state confront and move beyond this ugly chapter in its history."

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