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, Palmetto Promise Institute, 

South Carolina Office of the Treasurer, and South 

Carolina Department of Administration, Respondents. 

Appellate Case No. 2020-001069 

ORIGINAL JURISDICTION 

Opinion No. 28000 

Heard September 18, 2020 – Filed October 7, 2020 

DECLARATORY JUDGMENT ISSUED 

Skyler Bradley Hutto, of Williams & Williams, of 

Orangeburg, and W. Allen Nickles, 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. Michael 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 Columbia, 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 Shawn David Eubanks, both 

of the South Carolina Treasurer's Office, of Columbia, for 

Respondent South Carolina Office of the State Treasurer. 

David Keith Avant, General Counsel, and Mason A. 

Summers, Deputy General Counsel, both of the South 

Carolina Department of Administration, and Eugene 

Hamilton Matthews, of Richardson 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 Davis Hiner, of EdChoice, Inc., 

of Indianapolis, IN, for Amicus 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 Michelle 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 & Justice, 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, of 
National School Boards Association, of Alexandria, VA, 

for Amicus Curiae National School Boards Association. 

Reginald Wayne Belcher and Mark Brandon Goddard, 

both of Turner Padget Graham & Laney, P.A., of 

Columbia, for Amicus Curiae Palmetto State Teachers 

Association. 

Lindsay Danielle Jacobs, of Public Education Partners 

Greenville County, of Greenville, and Robert Edward 

Lominack, of Richland County Public Education Partners, 

of Columbia, for Amici Curiae Public Education Partners 

Greenville County and Richland 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 Amici 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 judgment action challenging the constitutionality of 

Governor Henry McMaster's allocation of $32 million in federal emergency 

education funding for the creation of the Safe Access to Flexible Education 

("SAFE") Grants Program. Petitioners contend the program, which provides onetime tuition grants for students to attend private and independent primary and 
secondary schools for the 2020-2021 academic year, violates our constitutional 

mandate prohibiting public funding 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 declared a national emergency based on a 

determination that the coronavirus ("COVID-19") poses an actual or imminent 

public health emergency, and Governor McMaster ("the Governor") subsequently 

issued a State of Emergency in South Carolina. On March 27, 2020, Congress 

passed and the President signed the Coronavirus Aid, Relief, and Economic Security 

Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) ("the CARES Act"). In the Act, 

Congress appropriated $30.75 billion to the Education Stabilization Fund to prevent, 

prepare for, and respond to COVID-19. Specifically, Congress ordered the Secretary 

of Education to allocate the money to three 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 Education Emergency Relief 

("HEER") Fund. See CARES Act § 18001(b). This matter 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 educational agency deems have been most 

significantly impacted by coronavirus to support the ability of such 

local educational agencies to continue to provide educational services 

to their students and to support the on-going functionality of the local 

educational agency; 

(2) provide emergency support through grants to institutions of higher 

education serving students within the State that the Governor 

determines have been most significantly 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 related entity within the State that the 

Governor deems essential for carrying out emergency educational 
 

services to students for authorized activities described in section 

18003(d)(1) of this title or the Higher Education Act, the provision of 

child care and early childhood education, social and emotional support, 

and the protection of education-related jobs. 

Id. § 18002(c). Under this section, the eligible grant recipients include local 

educational agencies, institutions of higher 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 and Secondary Education Act of 1965. Id. 

§ 18002(b). States receiving GEER Fund grants 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 applied for a GEER Fund grant, which the 

Department of Education approved and awarded $48,467,924 to South Carolina. On 

July 20, 2020, the Governor announced the creation 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 cost 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 would be eligible to apply through the 

program's online portal. The 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 providing 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 parent or guardian directs electronic payment 

of the SAFE Grant funds to the school through a secure online platform. Approved 

schools enroll as a vendor within the online platform to receive SAFE Grant 

payments. In the event a student withdraws 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 Grants Program, the Governor signed Act 

135 of 2020 into law, which provided for supplemental appropriations for the State's 

fiscal year to combat COVID-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 "establish the Coronavirus Relief Fund as a federal fund 

account separate and distinct from all other accounts" and authorized the Governor 

to receive federal money designated for the Fund on behalf of the State. Id. § 2(C)– 

(D). 

Petitioners challenged the Governor's use of the State's GEER funds for the 

SAFE Grants Program, seeking a declaratory judgment and injunctive relief in the 

circuit court and naming the State of South 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 temporary 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 subject matter jurisdiction. Subsequently, 

Petitioners advised the court of their intent to amend their initial complaint to refine 

the pleadings and include additional plaintiffs and expressed their desire to file a 

petition for original jurisdiction in this Court. The circuit court extended the original 

temporary restraining order for another ten days, struck the matter from the docket 

pursuant to Rule 40(j), SCRCP, and allowed 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 petition for original jurisdiction, requesting 

declaratory and injunctive relief, which this Court granted.1

 We also granted 

Petitioners' request to expedite the case and for a preliminary injunction, ordering 

Respondents to temporarily cease and desist in distributing any SAFE Grants 

Program funds in order to avoid prejudice and the potential for irreparable harm. 

Following oral argument, we extended the injunction until the issuance of this 

opinion. 

1

 The Governor and Palmetto Promise filed substantive briefs in this case. The South 

Carolina Office of the State Treasurer defers to the Governor's brief on the 

substantive issues. The South Carolina Department of Administration 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 accordance 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 the party has "a real, material, or substantial interest in 

the outcome of the litigation." Hill v. S.C. Dep't of Health & 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 constitutional standing because they cannot 

demonstrate an injury-in-fact that is personal 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 order 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 that 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 this exception "may be conferred upon a 

party when an issue is of such public importance 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 interests presented . . . ." Id. This Court has explained: 

An appropriate balance between the competing policy concerns 

underlying the issue of standing must be realized. Citizens must be 

afforded access to the judicial process to address alleged injustices. On 

the other hand, standing cannot be granted 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 concerns 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 standing] applies in a particular case turns 

on whether resolution of the dispute is needed for future guidance . . . . [T]he need 

for future guidance generally dictates when [public importance standing] applies . . 

. ."). 

Applying this test to the case at hand, we find Petitioners have established 

public importance standing. The COVID-19 pandemic that has plagued our State in 

recent months has posed unprecedented challenges in every area of life and severely 

disrupted essential governmental operations. Since the President's declaration of a 

national emergency, the Governor has issued a State of Emergency and several 

Executive Orders implementing "social distancing" practices to slow the spread of 

COVID-19. This Court has likewise directed that judicial proceedings be conducted 

using remote communication technology to minimize the risk to the public, litigants, 

lawyers, and court employees. The virus's impact 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 additional resources to continue providing 

educational services during this difficult time. 

A resolution for future guidance is needed here because this case involves the 

conduct of government entities and the expenditure of public funds, a prompt 

decision is necessary, and it is likely the situation will occur in the future if and when 

Congress approves additional education funding in response 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 importance standing where the matter involved the 

conduct of a government entity and the expenditure of public funds and there was 

evidence the entity would undertake 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 should be promptly decided"). Accordingly, 

Petitioners have public importance standing to bring this claim. 
 

B. Constitutionality under Article XI, Section 4 

Petitioners allege the Governor'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 the 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 educational institution." S.C. Const. art. XI, 

§ 4. 

Petitioners contend the GEER funds constitute "public funds" within the 

meaning of the constitutional provision because section 11-13-45 of the South 

Carolina Code requires the money be deposited 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 Executive, for the purpose of 

funding his grants program. In contrast, the 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 Education Assistance Act, which authorized the 

State Education Assistance Authority to issue "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 program 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 received 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 constitutional determination under Article 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 (1999) (noting an appellate court need 

not address remaining issues when disposition of a prior issue is dispositive). 
the Governor, as a representative of the State, to be used in accordance with the 

education funding provisions of the CARES Act. Significantly, the General 

Assembly has mandated that all federal funds be deposited 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 provided 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, agency or officer within 

the state government, except the State Treasurer 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 limit 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 evidence of the legislative intent or will. 

Therefore, the courts are bound to give effect to the expressed intent of the 

legislature."); 63C Am. Jur. 2d Public Funds § 1 (2018) (defining public funds "to 

include money belonging to, received 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) (characterizing 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 parties 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 treasurer 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 treasury). 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 indicating 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 using 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 school the student chooses to attend. 

Petitioners also assert the payment of tuition undoubtedly provides a direct benefit 

to the private educational institution receiving the money. 

In contrast, the Governor claims the SAFE Grants Program does not directly 

benefit the participating independent or private schools. Instead, the funds provide 

a direct benefit to the student recipient and his or her family, and the grants only 

indirectly benefit the private school. The Governor relies on the history of the 

amendment to the former Article XI, Section 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 constitutionality, 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 student 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 prohibited under the former Article 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 whatever source derived, shall not, by 

gift, donation, loan, contract, appropriation, or otherwise, be used, 

directly or indirectly, in aid or maintenance of any college, school, 

hospital, orphan house, or other institution, 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 engaged in a three-year study of the South 

Carolina Constitution and recommended revisions in its 1969 Final Report. In 
suggesting 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 private 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 outrightly to such institutions. Yet, the 

Committee sees that in the future there may be substantial reasons to 

aid the students in such institutions as well as in state colleges. 

Therefore, the Committee proposes a prohibition on direct grants only 

and the deletion of the word "indirectly" currently listed in Section 9. 

By removing the word "indirectly" the General Assembly could 

establish a program to aid students and perhaps contract with religious 

and private institutions for certain types of training and programs . . . . 

West Committee, Final Report of the Committee to Make 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 primary 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 because 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. Teachers 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) (reviewing similar constitutional provision 

and holding application of the theory "would 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 the selected school through use of a secure online portal. 

The direct payment of the funds to the private schools is contrary to the framers' 

intention not to grant public funds "outrightly" 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 electronic payment attenuate the connection of 

the funds to the private school so as to transform 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 private 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 individuals and instead permits the grants to 

be awarded only to entities. See CARES Act § 18002(c) (allowing the GEER funds 

to be used to provide support to local educational 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 "scrupulously neutral" nature of the student 

loan program, which left "all eligible institutions 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 only at private educational institutions selected by the 

Governor's advisory panel. The program does not provide students with the 

independent choice we found 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 benefit of private educational institutions in 

violation of Article XI, Section 4 of our Constitution. 

Notwithstanding our holding, the Governor 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 Supremacy Clause. U.S. Const. art. VI, § 2 

("This Constitution, and the Laws of the United 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 (2012) ("The preemption doctrine is 

rooted in the Supremacy Clause of the United States Constitution . . . ."). 
This Court has recognized that "[f]ederal legislation threatening to trench on 

the States' arrangements for conducting their 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' intent to alter the usual constitutional 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 plain statement rule is nothing more 

than an acknowledgement that the States retain substantial sovereign powers under 

our constitutional scheme, powers with which 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 the historic police powers of the States [are] 

not superseded by . . . Federal Act unless that [is] the clear and manifest purpose of 

Congress." Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (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 clear, 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 extent that such laws are inconsistent with 

this section, unless such laws provide greater protection from liability."). We 

therefore reject the Governor's assertion that the discretion provided him in the 

CARES Act preempts our constitutional 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 list, COVID-19 has taken precious lives, 

taxed our health care system, impacted our economy, and caused us to alter our court 

operations. Our system of education has not been spared as we have witnessed 
teachers valiantly work to adapt to different 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 this 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 current circumstances cannot dictate our 

decision. Rather, no matter the circumstances, the Court has a responsibility to 

uphold the Constitution. 

Based on the foregoing, we hold the Governor's allocation of $32 million in 

GEER funds to support the SAFE Grants Program 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. We further 

find the issuance of an injunction unnecessary, as we are assured Governor 

McMaster, as a duly elected constitutional officer of this State, will adhere to this 

Court's decision. As the Governor's lawyer stated during oral argument, the 

Governor is a "strong proponent of the rule of law." Equally, we respect the 

Executive Branch, and our decision 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.