THE STATE OF SOUTH CAROLINA In The Supreme Court

Dr. Thomasena Adams, Rhonda Polin, Shaun Thacker, Orangeburg County School District, Sherry East, and the South Carolina Education Association, Petitioners,

v.

Governor Henry McMaster, Pa lmetto Promise Institute, South Carolina Office of the Treasurer, and South Carolina Department of Ad ministration, Respondents.

Appellate Case No. 2020-001069

ORIGINAL JURISDICTION

Opinion No. 28000 Heard September 18, 2020 – Filed October 7, 2020

DECLARATORY JUDG MENT ISSUED

Skyler Bradley Hutto, of Williams & Williams, of Orangeburg, and W. Allen Ni ckles, III, of Nickles Law Firm, LLC, of Columbia, for Petitioners.

Thomas Ashley Limehouse, Jr. and Anita (Mardi) S. Fair, both of the Office of the South Carolina State Governor; Robert E. Tyson, J. Mich ael Montgomery, and Vordman Carlisle Traywick, III, all of Robinson Gray Stepp & Laffitte, LLC; and Michael J. Anzelmo, of McGuireWoods LLP, all of Columbia, for Respondent Governor Henry D. McMaster.Matthew Todd Carroll and Kevin A. Hall, both of Womble Bond Dickinson LLP, of Colu mbia, and Daniel R. Suhr and Brian K. Kelsey, both of Liberty Justice Center, of Chicago, IL, for Respondent Palmetto Promise Institute.

Shelly Bezanson Kelly and Sh awn David Eubanks, both of the South Carolina Treasurer's Office, of Columbia, for Respondent South Carolina Office of the State Treasurer.

David Keith Avant, Genera l Counsel, and Mason A. Summers, Deputy General Counsel, both of the South Carolina Department of Ad ministration, and Eugene Hamilton Matthews, of Rich ardson Plowden & Robinson, PA, all of Columbia, for Respondent South Carolina Department of Administration.

Timothy J. Newton, of Murphy & Grantland, P.A., of Columbia, for Amicus Curiae Association of Christian
Schools International.

Gray Thomas Culbreath, of Gallivan, White & Boyd, P.A., of Columbia, and Leslie Davi s Hiner, of EdChoice, Inc., of Indianapolis, IN, for Amic us Curiae EdChoice, Inc.

Joshua W. Dixon, of Gordon Rees Scully Munsukhani, of Charleston, and Paul Sherman, of Institute for Justice, of Arlington, VA, for Amicus Curiae Institute for Justice.

Miles Landon Terry and Miche lle K. Terry, both of Greenville, and Jay Alan Sekulow, Benjamin P. Sisney, and Jordan Sekulow, of Washington DC, all of The
American Center for Law & Ju stice, for Amicus Curiae Members of South Carolina's U.S. Congressional Delegation and the American Center for Law and Justice.

David T. Duff, of Duff Freeman Lyon LLC, of Columbia, and Francisco M. Negron, Jr ., Chief Legal Officer, ofNational School Boards Associ ation, of Alexandria, VA,
for Amicus Curiae National School Boards Association.

Reginald Wayne Belcher a nd Mark Brandon Goddard, both of Turner Padget Gr aham & Laney, P.A., of Columbia, for Amicus Curiae Palmetto State Teachers
Association.

Lindsay Danielle Jacobs, of Public Education Partners Greenville County, of Gree nville, and Robert Edward Lominack, of Richland County Public Education Partners, of Columbia, for Amici Curiae Public Education Partners Greenville County and Richla nd County Public Education

Partners.

Matthew Anderson Nickles, of Richardson, Patrick, Westbrook, & Brickman, LLC, of Columbia, for Amici
Curiae Public Funds Public Schools and Southern
Education Foundation.

John Marshall Reagle, Vernie L. Williams, and Connie Pertrice Jackson, all of Halligan Mahoney Williams Smith Fawley & Reagle, P.A., of Columbia, for Amici Curiae
South Carolina School Boards Association and South
Carolina Association of School Administrators.

Eliot Bradford Peace, of Tampa, FL, and Lindsey C. Boney, IV, of Birmingham, AL, both of Bradley Arant Boult Cummings LLP, for Am ici Curiae The Foundation for Excellence in Education, Inc., and The Alliance for
School Choice.

CHIEF JUSTICE BEATTY: We granted the petition for original jurisdiction in this declaratory judgmen t action challenging the constitutionality of Governor Henry McMaster 's allocation of $32 milli on in federal emergency education funding for the creation of th e Safe Access to Flexible Education ("SAFE") Grants Program. Petitioners co ntend the program, which provides one

time tuition grants for students to attend private and independent primary andsecondary schools for the 2020-2021 academ ic year, violates our constitutional mandate prohibiting public f unding of private schools. We hold the Governor's decision constitutes the use of public funds for the direct benefit of private educational institutions within the meaning of, and prohibited by, Article XI, Section
4 of the South Carolina Constitution.

I. FACTS

On March 13, 2020, the President decl ared a national emergency based on a determination that the coronavirus ("C OVID-19") poses an actual or imminent public health emergency, a nd Governor McMaster ("the Governor") subsequently issued a State of Emergency in South Carolina. On March 27, 2020, Congress passed and the President signed the Coronavi rus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) ("the CA RES Act"). In the Act, Congress appropriated $30.75 billion to the Education Stabilization Fund to prevent, prepare for, and respond to COVID-19. Sp ecifically, Congress ordered the Secretary of Education to allocate the money to thre e sub-funds: (1) the Governor's Emergency Education Relief ("GEER") Fund; (2) the Elementary and Secondary School Emergency Relief ("ESSER") Fund; and (3) the Higher E ducation Emergency Relief ("HEER") Fund. See CARES Act § 18001(b). This ma tter concerns the award of
GEER funds to the State of South Carolina to be distributed at the direction of the Governor. Under the Act, Congress provided that GEER funds may be used to:

(1) provide emergency support through grants to local educational agencies that the State educationa l agency deems have been most significantly impacted by coronavirus to support the ability of such local educational agencies to contin ue to provide educational services to their students and to support th e on-going functionality of the local educational agency;

(2) provide emergency support throug h grants to institutions of higher education serving students within the State that the Governor determines have been most signifi cantly impacted by coronavirus to support the ability of such institutions to continue to provide educational services and support the on-going functionality of the institution; and

(3) provide support to any other institution of higher education, local educational agency, or education rela ted entity within the State that the
Governor deems essential for ca rrying out emergency educationalservices to students for authori zed activities described in section 18003(d)(1) of this title or the Highe r Education Act, the provision of child care and early childhood educati on, social and emotional support, and the protection of education-related jobs.

Id

. § 18002(c). Under this section, the e ligible grant recipients include local educational agencies, institutions of high er learning, and other education related
entities. Id . The grants are awarded to each State based on the relative population of individuals aged 5 through 24 and the relative number of children counted under section 1124(c) of the Elementary a nd Secondary Education Act of 1965. Id

. § 18002(b). States receiving GEER Fund gr ants must award the funds to eligible entities within one year of receiving the allocation. Id . § 18002(d). Any funds not awarded within the one-year period must be returned to the Department of Education
for reallocation to other states. Id

.
On May 8, 2020, the Governor applie d for a GEER Fund grant, which the Department of Education a pproved and awarded $48,467,924 to South Carolina. On July 20, 2020, the Governor announced the cr eation of the Safe Access to Flexible Education ("SAFE") Grants Program to be funded using $32,000,000 of the GEER
funds awarded under the CARES Act. The program would provide one-time, needbased grants of up to $6,500 per student to cover the co st of tuition for eligible students to attend participating private or independent schools in South Carolina for the 2020-2021 academic year. Families with a household adjusted gross income of up to 300% of the federal poverty level w ould be eligible to apply through the program's online portal. Th e first 2,500 grants are to be awarded on a first-come, first-served basis, after which a lottery program will be instituted to allocate the balance of available grant funds.

Private schools wishing to participate in the SAFE Grants Program must satisfy certain criteria, including providi ng a certification that they have been impacted by COVID-19, and the Governor 's advisory panel will select the independent schools eligible to receive grants. Once a student has selected the private school he or she would like to attend from a preapproved list, and the student's enrollment is confirmed, the pare nt or guardian directs electronic payment
of the SAFE Grant funds to the school th rough a secure online platform. Approved
schools enroll as a vendor within the on line platform to re ceive SAFE Grant payments. In the event a student withdr aws from the school during the school year, the school must issue a pro-rated refund to the SAFE Grants Program for any unexpended or pre-paid tuition.Prior to the creation of the SAFE Gran ts Program, the Governor signed Act 135 of 2020 into law, which provided for supplemental appropriations for the State's fiscal year to combat CO VID-19 and for the operation of state government during the public health crisis. Act No. 135, 2020 S.C. Acts ___. Act 135 required the Executive Budget Office to "e stablish the Coronavirus Relief Fund as a federal fund account separate and distinct from all other accounts" a nd authorized the Governor to receive federal money designated for the Fund on be half of the State. Id . § 2(C)– (D).

Petitioners challenged the Governor's us e of the State's GEER funds for the SAFE Grants Program, seeking a declarat ory judgment and injunctive relief in the circuit court and naming the State of Sout h Carolina, the Governor, and Palmetto Promise Institute ("Palmetto Promise") as defendants. The circuit court issued a temporary restraining order and scheduled a hearing. The Governor and Palmetto Promise filed motions to dissolve the tempor ary restraining order, and all three of
the defendants moved to dismiss Petitioners' complaint. At the hearing, the court dismissed the State, finding a lack of s ubject matter jurisdiction. Subsequently,
Petitioners advised the court of their intent to amend thei r initial complaint to refine the pleadings and include additional plainti ffs and expressed thei r desire to file a petition for original jurisdiction in this Cour t. The circuit court extended the original temporary restraining order for another te n days, struck the matter from the docket pursuant to Rule 40(j), SCRCP, and allowe d Petitioners to restore the action to the
circuit court docket under the amended complaint if this Court did not grant the petition. Thereafter, Petitioners filed a pe tition for original jurisdiction, requesting declaratory and injunctive relief, which this Court granted. 1 We also granted Petitioners' request to exped ite the case and for a prelim inary injunction, ordering Respondents to temporarily cease and desi st in distributing any SAFE Grants Program funds in order to avoid prejudice and the potential for irreparable harm. Following oral argument, we extended th e injunction until the issuance of this opinion.

1 The Governor and Palmetto Promise filed su bstantive briefs in this case. The South
Carolina Office of the State Treasurer de fers to the Governor's brief on the
substantive issues. The Sout h Carolina Department of Ad ministration states it "has acted and will act in this matter pursuant only to the authority bestowed upon it by the legislature of this State and in accord ance with any order(s) issued by this Court."II. DISCUSSION

A. Standing

At the outset, the Governor moves to dismiss Petitioners' complaint because they lack standing to sue. "Standing to sue is a fundamental requirement to instituting an action." Joytime Distribs. & Amusement Co. v. State , 338 S.C. 634, 639, 528 S.E.2d 647, 649 (1999). Generally, a party must be a real party in interest to obtain standing, meaning th e party has "a real, material, or substantial interest in the outcome of the litigation." Hill v. S.C. Dep't of He alth & Envtl. Control , 389 S.C. 1, 22, 698 S.E.2d 612, 623 (2010) (quoting Sloan v. Friends of the Hunley, Inc.

, 369 S.C. 20, 28, 630 S.E.2d 474, 479 (2006)). Standing may be achieved by statute, constitutional standing, or the public importance exception. Youngblood v. S.C. Dep't of Soc. Servs. , 402 S.C. 311, 317, 741 S.E.2d 515, 518 (2013). The Governor claims Petitioners have failed to identify a statute that gives them standing. He also argues Petitioners are unable to prove c onstitutional standing because they cannot demonstrate an injury-in-fact that is pers onal to them, since the GEER funds are to be used at the Governor's discretion, and public schools are not inherently entitled
to them.

Petitioners claim standing under the public importance exception. "Unlike with constitutional standing, a party is not required to show he has suffered a concrete or particularized injury in or der to obtain public importance standing." S.C. Pub. Interest Found. v. S.C. Dep't of Transp. , 421 S.C. 110, 118, 804 S.E.2d 854, 858 (2017). The party also need not show th at he has "an interest greater than other potential plaintiffs." Davis v. Richland Cty. Council , 372 S.C. 497, 500, 642 S.E.2d 740, 742 (2007). Instead, standing under th is exception "may be conferred upon a party when an issue is of such public import ance as to require its resolution for future guidance." ATC S., Inc. v. Charleston Cty. , 380 S.C. 191, 198, 669 S.E.2d 337, 341 (2008). "Whether an issue of public importance exists necessitates a cautious balancing of the competing in terests presented . . . ." Id . This Court has explained:

An appropriate balanc e between the compe ting policy concerns underlying the issue of standing must be realized. Citizens must be afforded access to the judicial proce ss to address alleged injustices. On the other hand, standing cannot be gr anted to every individual who has a grievance against a public official. Otherwise, public officials would be subject to numerous lawsuits at the expense of both judicial economy
and the freedom from frivolous lawsuits.Sloan v. Sanford , 357 S.C. 431, 434, 593 S.E. 2d 470, 472 (2004). Thus, "courts must take these competing policy con cerns into consideration . . . ." S.C. Pub.
Interest Found. , 421 S.C. at 118, 804 S.E.2d at 859. We have also acknowledged "[t]he key to the public importance analysis is whether a resolution is needed for future guidance." ATC S. , 380 S.C. at 199, 669 S.E.2d at 341; Carnival Corp. v. Historic Ansonborough Neighborhood Ass'n , 407 S.C. 67, 79–80, 753 S.E.2d 846, 853 (2014) ("Whether [public importance standi ng] applies in a particular case turns on whether resolution of the dispute is need ed for future guidance . . . . [T]he need for future guidance generally dictates when [public importance st anding] applies . . . .").

Applying this test to the case at ha nd, we find Petitioners have established public importance standing. The COVID-19 pandemic that has plagued our State in recent months has posed unpr ecedented challenges in every area of life and severely disrupted essential governmental operations. Since the President's declaration of a national emergency, the Governor has i ssued a State of Emergency and several Executive Orders implementing "social distan cing" practices to slow the spread of
COVID-19. This Court has likewise direct ed that judicial proceedings be conducted using remote communication technology to mi nimize the risk to the public, litigants, lawyers, and court employees. The virus's im pact on education in this State has been no less great. Indeed, it is for this reason that Congress endeavored to appropriate emergency funds through the CARES Act to protect our nation's students and teachers and to supply states with ad ditional resources to continue providing
educational services dur ing this difficult time.

A resolution for future guidance is need ed here because this case involves the conduct of government entities and the expe nditure of public funds, a prompt decision is necessary, and it is likely the situ ation will occur in the future if and when Congress approves additional education funding in re sponse to the continued COVID-19 pandemic. See S.C. Pub. Interest Found. , 421 S.C. at 119, 804 S.E.2d at 859 (finding although a "close call," the balance of the policy concerns weighed in favor of conferring public importan ce standing where the matter involved the conduct of a government entity and the expenditure of public funds and there was evidence the entity would underta ke the conduct at issue again); Breeden v. S.C.

Democratic Exec. Comm ., 226 S.C. 204, 208, 84 S.E.2d 723, 725 (1954) (finding the question of who is the nominee of the Democratic party for public office "is not only of public interest, but one which shoul d be promptly decided"). Accordingly, Petitioners have public importance standing to bring this claim.B. Constitutionality under Article XI, Section 4

Petitioners allege the Gove rnor's use of GEER funds for his SAFE Grants Program violates Article XI, Section 4 of the South Carolina Constitution because the program uses public funds for th e direct benefit of private schools. 2 Specifically, this constitutional mandate provides, "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 ed ucational institution." S.C. Const. art. XI, § 4.

Petitioners contend the GEER funds c onstitute "public funds" within the meaning of the constitutional provision because section 11-13-45 of the South Carolina Code requires the money be deposite d in the State Treasury. They further argue the funds are not passively flowing through the State but are being actively utilized by the State, through the Governor as its Chief Ex ecutive, for the purpose of funding his grants program. In contrast, th e Governor relies on this Court's decision
in Durham v. McLeod , 259 S.C. 409, 413, 192 S.E.2d 202, 204 (1972) to support his argument that the GEER funds are not "public funds." In Durham , we considered the constitutionality of the State Educati on Assistance Act, which authorized the State Education Assistance Authority to i ssue "loans to students to defray their expenses at any institution of higher learning." Id . at 412, 192 S.E.2d at 203. The funds received by the Authority were "trust funds to be held and applied solely toward carrying out the purposes of the Act." Id . The Act also specified the funds
did "not constitute a debt of the State or any political subdivision." Id . Accordingly, we held the funds used to support the pr ogram were not "public funds" but instead a
"student loan fund under the Act" that is "held by the Authority as a trust fund." Id

. at 413, 192 S.E.2d at 203.

We find this case is distinguishable from Durham . Here, the GEER funds
awarded to South Carolina are to be rece ived from the federal government in the coffers of the State Treasury and distributed through the Treasury, at the behest of

2 Petitioners also challenge the Governor 's decision under Article XI, Section 3, which requires the government to provide public education to all children in this
State. Because our constitu tional determination under Artic le XI, Section 4 resolves this case, we need not address this issue. Futch v. McAllister Towing of Georgetown,

Inc. , 335 S.C. 598, 613, 518 S.E.2d 591, 598 (199 9) (noting an appellate court need not address remaining issues when disposition of a prior issue is dispositive).the Governor, as a representative of the St ate, to be used in accordance with the education funding provisions of the CA RES Act. Significantly, the General Assembly has mandated that all federal funds be depos ited into and withdrawn from the State Treasury. S.C. Code Ann. § 11- 13-45 (2011) ("All federal funds received

must be deposited in the State Treasury . . . and withdrawn from the State Treasury as needed, in the same manner as that provi ded for the disbursement of state funds.") (emphasis added). See id . § 11-13-30 ("To facilitate the management, investment,
and disbursement of public funds , no board, commission, agen cy or officer within the state government, except the State Treas urer shall be authorized to . . . deposit funds from any source . . . .") (emphasis added). Given this clear directive, we must
conclude that when the GEER funds are received in the State Treasury and distributed through it, the funds are converted into "public funds" within the meaning of Article XI, Section 4. Sloan v. Hardee , 371 S.C. 495, 499, 640 S.E.2d 457, 459 (2007) ("Words must be given their plain and ordinary meaning without resort to
subtle or forced construction to lim it or expand the statute's operation."); Hodges v. Rainey , 341 S.C. 79, 85, 533 S.E. 2d 578, 581 (2000) ("What a legislature says in the
text of a statute is considered the best ev idence of the legislative intent or will. Therefore, the courts are bound to give e ffect to the expressed intent of the legislature."); 63C Am. Jur. 2d Public Funds § 1 (2018) (defining public funds "to include money belonging to, rece ived or held by . . . a state or subdivision thereof").
See Weston v. Carolina Research & Dev. Found. , 303 S.C. 398, 402, 401 S.E.2d 161, 164 (1991) (characteriz ing federal grant money as "public funds" under the South Carolina Freedom of Information Act); see also Cain v. Horne , 202 P.3d 1178, 1183 (Ariz. 2009) (noting the pa rties did not dispute the funds at issue constituted "public funds" within the meaning of the state constitution's no aid provision, where they "are withdrawn from the public treasury"); Mallory v. Barrera , 544 S.W.2d 556, 561 (Mo. 1976) (holding federal funds deposited in the state treasury were "public funds" within the meaning of the state constitution's no aid provision); Gardner v. Bd. of Trs. of N.C. Local Gov't Emps.' Ret. Sys. , 38 S.E.2d 314, 316 (N.C. 1946) ("Monies paid into the hands of the state treasurer by virtue of a state law become public funds for which the treasu rer is responsible and may be disbursed only in accordance with legislative authority."); Cooper v. Berger , 837 S.E.2d 7, 17– 18 (N.C. Ct. App. 2019) (expanding Gardner to hold federal block grant funds constitute "public funds" in the state treasur y). Moreover, the GEER funds given to the private schools for student tuition must be returned pro rata to the State Treasury
if the student leaves the school before the school term ends. The funds then remain funds of the State to be used presumably however the General Assembly chooses.
There is no evidence in the record indi cating a separate fund was created for the receipt of GEER funds.Petitioners further claim the Governor's allocation of the GEER funds to create one-time tuition grants for students to attend private schools violates our Constitution's prohibition on usi ng public funds for the "direct benefit" of a "private educational institution." Specifically, they argue the money is transferred directly from the State Treasury to the private sc hool the student chooses to attend. Petitioners also assert the payment of tu ition undoubtedly provides a direct benefit to the private educational in stitution receiving the money.

In contrast, the Governor claims the SA FE Grants Program does not directly benefit the participating independent or pr ivate schools. Instead, the funds provide a direct benefit to the student recipient a nd his or her family, and the grants only indirectly benefit the private school. Th e Governor relies on the history of the amendment to the former Article XI, Sec tion 9 following this Court's decision in

Hartness v. Patterson , 255 S.C. 503, 179 S.E.2d 907 (1971 ) to conclude that our Constitution now permits the use of public funds for the indirect benefit of private
schools. In Hartness , we considered the constitu tionality, under the former provision, of a legislative act providing tuition grants to students attending independent institutions of higher learning. Id . at 505, 179 S.E.2d at 908. The grants were not made directly to the school but were made to the st udent who was then required to pay it to the school he selected to attend. Id . at 507, 179 S.E.2d at 908. This Court held the use of public funds to provide these grants to students attending private religious institutions was prohibite d under the former Artic le XI, Section 9.
Id . at 508, 179 S.E.2d at 909.

The former provision stated:

The property or credit of the State of South Carolina, or of any County, city, town, township, school district, or other subdivision of the said State, or any public money, from wh atever source derived, shall not, by gift, donation, loan, contract, appropr iation, or otherwise, be used, directly or indirectly , in aid or maintenan ce of any college, school, hospital, orphan house, or other instit ution, society, or organization, of whatever kind, which is wholly or in part under the direction or control of any church or religious or sectarian denomination, society or organization.

S.C. Const. art. XI, § 9 (1895) (emphasis added), amended by S.C. Const. art. XI, § 4 (1972). In 1966, the West Committee e ngaged in a three-year study of the South
Carolina Constitution and recommended revi sions in its 1969 Final Report. Insuggesting the amendment and adoption of the current provision, the Committee provided the following comments in the Report:

The Committee evaluated this section in conjunction with interpretations being given by the federal judiciary to the "establishment of religion" clause in the federal constitution. The Committee fully recognized the tremendous number of South Carolinians being educated at privat e and religious schools in this State and that the educational costs to the State would sharply increase if these programs ceased. From the standpoint of the State and the independence of the private institutions, the Committee feels that public funds should not be granted ou trightly to such institutions . Yet, the
Committee sees that in th e future there may be substantial reasons to
aid the students in such institutions as well as in state colleges. Therefore, the Co mmittee proposes a prohibition on direct grants only
and the deletion of the word "indirec tly" currently listed in Section 9. By removing the word "indirectly " the General Assembly could establish a program to aid students a nd perhaps contract with religious and private institutions for certain t ypes of training and programs . . . .

West Committee, Final Repor t of the Committee to Ma ke a Study of the South Carolina Constitution of 1895, 99–101 (1969) (emphasis added). We offer no opinion on the efficacy of the Committee' s report; however, based on this history
and our decision in Hartness , the Governor urges this Court to find the private schools here only indirectly benefit from the SAFE Grants Program, and it is the students and their families who are the prim ary beneficiaries of the funding. Under the facts of this case, we disagree. See, e.g.

, Cain , 202 P.3d at 1184 (refusing to apply a "true beneficiary theory exception" to find the individuals benefit rather than the institution receiving the public funds be cause such a holding "would nullify the Aid Clause's clear prohibition against the use of public funds to aid private or sectarian education"); see also Cal. Teac hers Ass'n v. Riles , 632 P.2d 953, 960, 962 (Cal. 1981) (rejecting the application of the "child benefit theory" and noting it could be used to justify any type of aid to sectarian schools because "practically every proper expenditure for school purposes aids the child"); Gaffney v. State Dep't of
Educ. , 220 N.W.2d 550, 556 (Neb. 1974) (review ing similar constitutional provision and holding application of the theory "woul d lead to total circumvention of the principles of our [State] Constitution").

We reject the argument that the SAFE tuition grants do not confer a direct benefit on the participating private schools because unlike the grants in Hartness

,which were made directly to the student, the SAFE Grants are directly transferred from the State Treasury to th e selected school through use of a secure online portal. The direct payment of the funds to the pr ivate schools is contrary to the framers' intention not to grant public funds "outrigh tly" to such institutions. Nevertheless, the Governor argues the student's act of choosing which school to attend and her parent or guardian's direction of the elect ronic payment attenuate the connection of the funds to the private school so as to tran sform it into merely an incidental, indirect benefit. This argument is unavailing. See Cain , 202 P.3d at 1184 ("[T]he voucher programs do precisely what the Aid Clause prohibits. These programs transfer state funds directly from the state treasury to pr ivate schools. That the checks or warrants first pass through the hands of parents is immaterial."). In fact, the CARES Act prohibits direct payment of the funds to in dividuals and instead permits the grants to be awarded only to entities. See CARES Act § 18002(c) (a llowing the GEER funds to be used to provide support to local ed ucational agencies, institutions of higher learning, and education related entities).

In addition, the facts of this case are distinguishable from our decision in
Durham . There, we emphasized the "scrupulous ly neutral" nature of the student loan program, which left "all eligible instit utions free to compete for [the student's] attendance," and the aid was not made "to any institution or group of institutions" in particular. Durham , 259 S.C. at 413, 192 S.E.2d at 203–04. Here, the SAFE Grants
are made available for use on ly at private educational institutions selected by the Governor's advisory pane l. The program does not provide students with the independent choice we f ound to be acceptable in Durham

. See Sheldon Jackson College v. State , 599 P.2d 127, 131 (Alaska 1979) ( holding a state tuition grant program violated the state constitution where the only incentive it created was to enroll in a private school). Accordingly, we hold the Governor's SAFE Grants Program uses public funds for the direct bene fit of private educational institutions in violation of Article XI, Sec tion 4 of our Constitution.

Notwithstanding our holding, the Govern or claims the CARES Act grants him absolute discretion in using the GEER funds such that the federal law preempts this state constitutional provision under the Suprem acy Clause. U.S. Const. art. VI, § 2 ("This Constitution, and the Laws of the Un ited States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."); Priester v.
Cromer , 401 S.C. 38, 43, 736 S.E.2d 249, 252 (2 012) ("The preemption doctrine is rooted in the Supremacy Clause of th e United States Constitution . . . .").This Court has recognized that "[f]ederal legislation threatening to trench on the States' arrangements for conducting th eir own governments should be treated with great skepticism, and read in a way that preserves a State's chosen disposition of its own power, in the absence of the plain statement in the language of the legislation of Congress' inte nt to alter the usual constitu tional balance of state and federal powers." Edwards v. State , 383 S.C. 82, 92, 678 S.E.2d 412, 417 (2009) (quoting Nixon v. Mo. Mun. League , 541 U.S. 125, 140 (2004) (citing Gregory v. Ashcroft , 501 U.S. 452, 460–61 (1991))). "This plai n statement rule is nothing more than an acknowledgement that the States retain substantial sovereign powers under our constitutional scheme, powers with whic h Congress does not readily interfere." Gregory , 501 U.S. at 461. "Consideration of issues arising under the Supremacy Clause start[s] with the assumption that th e historic police powers of the States [are] not superseded by . . . Federa l Act unless that [is] the cl ear and manifest purpose of Congress." Cipollone v. Liggett Grp., Inc. , 505 U.S. 504, 516 (199 2) (alteration in original) (quoting Rice v. Santa Fe Elevator Corp. , 331 U.S. 218, 230 (1947)). Accordingly, "[t]he purpose of Congress is the ultimate touchstone of pre-emption analysis." Priester , 401 S.C. at 43, 736 S.E.2d at 252 (quoting Cipollone , 505 U.S. at 516)). "To discern Congress' intent we examine the explicit statutory language and the structure and purpose of the statute." Id . (quoting Ingersoll-Rand Co. v.
McClendon , 498 U.S. 133, 138 (1990)).

We find there is no clear congressional intent in the education provisions of
the CARES Act to allow the Governor to allocate the GEER funds in his discretion
in contravention of our State Constitution. If that were the case, Congress certainly
understood how to make such intention cl ear, as evidenced by its inclusion of a preemption clause in the provisions of the Act regarding support for health care
workers. See CARES Act § 3215(c)(1) ("This section preempts the laws of a State or political subdivision of a State to the exte nt that such laws are inconsistent with this section, unless such laws provide greater protection from liability."). We therefore reject the Governor's asserti on that the discretion provided him in the CARES Act preempts our cons titutional mandate prohibiting the use of public funds for the direct benefit of private educational institutions.

III. CONCLUSION

Without question, the effects of the COVID-19 pandemic have been
unfathomable. While not an inclusive lis t, COVID-19 has taken precious lives, taxed our health care system, impacted our economy, and cau sed us to alter our court operations. Our system of education has not been spared as we have witnessedteachers valiantly work to adapt to diff erent methods of educating South Carolina's
children.

This crisis has created unprecedented challenges for the leaders in our state government. The Governor has faced issues that have never been presented to any
other administration. We recognize and fully appreciate the difficulty of making decisions that impact our entire state during this public health emergency.

However, having accepted th is matter in our original jurisdiction, we must fulfill our duty to review the Governor 's decision to expend GEER Fund grant
monies on the SAFE Grants Program. Even in the midst of a pandemic, our State Constitution remains a constant, and the cu rrent circumstances cannot dictate our decision. Rather, no matter the circum stances, the Court has a responsibility to uphold the Constitution.

Based on the foregoing, we hold the Go vernor's allocation of $32 million in GEER funds to support the SAFE Grants Pro gram constitutes the use of public funds for the direct benefit of private educati onal institutions within the meaning of, and prohibited by, Article XI, Section 4 of th e South Carolina Constitution. We further find the issuance of an injunction unn ecessary, as we are assured Governor McMaster, as a duly elected c onstitutional officer of this State, will adhere to this
Court's decision. As the Governor's la wyer stated during oral argument, the Governor is a "strong proponent of the ru le of law." Equally, we respect the Executive Branch, and our deci sion should in no way be construed as diminishing that respect. The preliminary injunction currently in effect is hereby dissolved.

DECLARATORY JUDGMENT ISSUED.

KITTREDGE, HEARN, FEW, JJ., and Acting Justice John D. Geathers, concur.