In a crushing blow to school choice, South Carolina’s highest court recently struck down, by a 3-2 vote, the state’s fledgling voucher program as unconstitutional. The result is a mad scramble for what to do about voucher funds already distributed, with lawmakers keen on finding a constitutional alternative.

In the meantime, though, the decision leaves families in South Carolina—specifically, those representing some 3,000 children from low and moderate-income families—once again at a loss for choices beyond public school.

Families below certain income limits that participated in South Carolina’s Education Scholarship Trust Fund (ESTF) program were awarded accounts worth $6,000 for use on education products and services like tutoring, private school tuition, and textbooks. Enacted in 2023, the ESTF made South Carolina the 19th state in the country to enact a similar account-style educational option.

But it didn’t last. Together with a group of parents, a state chapter of the notoriously Left-aligned teacher’s union, the National Education Association (NEA), sued the state, arguing that the voucher program violated Article XI, Section 4 of the South Carolina Constitution.

That provision reads:

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.

But the public funds don’t “benefit” religious institutions, they benefit families, who are the direct recipients of the funds. And the question of whether public funds can be used for private (and even religious) education has already been asked and answered by the Supreme Court in Carson v. Makin in 2022.

In that case, the Court ruled 6-3 that Maine could not prevent parents from using otherwise generally available state school choice funds at religious schools simply because those schools provided religious instruction. When families receive government funds to choose a religious K-12 school for their children, those individuals are not using public money to “establish” a religion—something clearly prohibited by the First Amendment. Rather, they’re making what they see as the best educational choice for their children.

In Carson, the Supreme Court relied on its previous decisions addressing public funds and private – specifically religious—institutions: Trinity Lutheran Church of Columbia v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020) to resolve the case. In Trinity Lutheran, the court held that Missouri could not discriminate against otherwise eligible recipients of public benefits because of their religion. And in Espinoza, the court held unconstitutional a provision of the Montana Constitution that barred aid to a school “controlled in whole or in part by any church, sect, or denomination.”

The majority of the South Carolina Supreme Court panel found the argument that ESTF funds were benefiting families, and not religious schools or other private schools to be unpersuasive. “We find a student's choice as structured in the Act before us today does not materially alter the nature of the benefit received by private educational institutions when public money is used for tuition at those institutions,” the majority wrote.

South Carolina’s constitutional provision, upheld by the state Supreme Court, slightly resembles the Montana constitutional provision struck down by the U.S. Supreme Court in Espinoza. However, while the Montana provision explicitly excluded some members of the community from an otherwise generally available school choice benefit because of their choice of a religious school, the South Carolina provision prohibits the use of state monies from benefitting private religious schools and private secular schools alike.

Whether the inclusion of religious schools alongside secular schools in South Carolina’s prohibition renders it constitutionally suspect on, for example, an appeal to the U.S. Supreme Court—or whether legislators in the Palmetto State will head back to the drawing board for a provision with water-tight language—remains to be seen.

South Carolina parents aren’t alone. Low-income Kentucky parents lost access to that state’s voucher program in 2022 when that state’s Supreme Court struck it down, arguing that the program could not conceal its fundamental nature—one designed to use public taxpayer dollars to fund private and religious schools in violation of that state’s constitution.

In Kentucky, discussions of a constitutional amendment to rectify that problem are underway. School choice critics in other states are already pursuing similar lawsuits in Ohio, Utah, and Wisconsin.

For now, what path South Carolina takes to ensure underprivileged children receive the best possible education is anyone’s guess.