Republican-controlled states have been on a crusade to enact vouchers, with the alone stimulus of billionaire lobbying dollars. We know from Michigan State University scholar Josh Cowen that most students who use vouchers were already enrolled in private schools. Thus, vouchers are a subsidy for people who can afford private schools, not for low-income students. Cowen also has demonstrated that the academic outcomes of vouchers are disastrous for kids who transfer from public schools (the evidence is contained in Cowen’s excellent new book: The Privateers).

The South Carolina State Supreme Court just overturned the state’s voucher program. Three judges recognized that the program violated the state constitution. Courts in other Republican-controlled states have decoded that the state constitution does not mean what it says.

Peter Greene writes in Forbes:

In many states, the challenge of creating a school voucher program is a constitutional requirement that public tax dollar are designated only for public schools. South Carolina’s legislature thought they had found a workaround; today the State Supreme Court said no.

The 3-2 decision came as a surprise. But the basis for the “relief granted in part” was straightforward.

The petitioners in the case make the claim that the voucher program violates Article XI, Section 4 of the South Carolina Constitution:

“No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.”

The language is exceptionally direct and clear, but legislators thought they had created a workaround in the form of the Education Scholarship Trust Fund. The premise, seen in many taxpayer funded voucher programs in other states, is that once the money passes into the hands of a third party, it somehow sheds its public nature.

As the ruling puts it:

Respondents’ primary argument is that the funds start out as public funds but lose their public character once the Treasurer places the funds in the ESTF.

The court is unconvinced that the ESTF is a true trust. And the court points out that even if it is a trust, the nature of a trust is that the trustee holds legal title to the estate, and in this case, the trustee is the state. The court notes that “this is not the first time we have encountered an attempt to deploy a trust to avoid constitutional limits on the use of public funds” and cites O’Brien v. S. C. ORBIT.

The other argument by the state is that ESTF funds benefit the families, and do not provide “direct benefit” to the private schools. “[T]hey read our Constitution as allowing public funds to be directly paid to private schools as tuition as long as the funds are nudged along their path by the student.”

The state argues that this is not like the last time vouchers were struck down (Adams v. McMaster) because this time the vouchers can be used for private or public schools. Therefor the program does not provide direct benefits for private schools. However, responds the court, “just because the benefit is diffuse does not mean it is not direct.”

State Superintendent of Education Ellen Weaver responded to the ruling.

“Families cried tears of joy when the scholarship funds became available for their children, and today’s Supreme Court ruling brings those same families tears of devastation. The late timing of the initial filing and subsequent ruling on this case midway through the first quarter of the new school year wreaks havoc on the participating students and their families.”

The ruling is certainly inconveniently timed for those students who have already used the vouchers to start their new school year. It’s not clear what will happen to them.

Previously, Kentucky’s Supreme Court also struck down their state’s voucher program, arguing that the twists and turns built into the program did not conceal it’s fundamental nature—the use of public taxpayer dollars to fund private and religious schools in violation of the state constitution. In Kentucky, that has led to an attempt to rewrite the constitution. We’ll see what the South Carolina legislature tries next.