(Greenville News)—Attorneys representing two private schools groups have asked a federal judge to temporarily prevent South Carolina Gov. Henry McMaster from spending his discretionary coronavirus aid money while a lawsuit attempts to repeal a section of the state’s Constitution.
The lawsuit, which was filed in federal court in Charleston on April 14, challenges a portion of the South Carolina Constitution that says private or religious institutions cannot directly receive public money.
Attorneys representing the Bishop of Charleston and the South Carolina Independent Colleges and Universities filed the lawsuit several months after the state’s Supreme Court reaffirmed its decision to deny the governor’s attempt to give $32 million in federal CARES Act money to private K-12 schools.
As a result of the decision, the governor was also unable to spend $2.4 million he had allocated to historically Black colleges and universities in the state.
The governor re-allocated the funds after the Supreme Court affirmed its decision in December, and an attorney for the governor said much of it has already been sent to other groups. About $12 million was sent to the Department of Juvenile Justice, $4.9 million to the Department of Social Services for foster programs, and about $9 million was spent on charter schools, among other agencies.
The governor has until May 11, 2021, or one year upon receiving the federal aid, to allocate the money before it expires.
Listed as defendants on the lawsuit are McMaster, Executive Director of the South Carolina Department of Administration Marcia Adams and South Carolina Department of Administration budget director Brian Gaines.
In a virtual hearing on the injunction Monday morning, an attorney for McMaster said the governor was frustrated by the Supreme Court decision but was obligated to obey it.
“Gov. McMaster doesn’t like it any more than the plaintiffs do, but he also respects the rule of law and is bound to follow it,” Attorney Thomas Limehouse Jr. said. “Asking a federal judge to enjoin a state governor from spending discretionary funds is a bridge too far.”
Limehouse said even though McMaster originally allocated the money to private schools, the plaintiffs do not have a legal right to it since it is part of the $48.5 million he received in discretionary money from the Governor’s Emergency Education Relief coronavirus aid fund.
Daniel Suhr, an attorney for the Liberty Justice Center representing the plaintiffs, argued that the section of the Constitution that prevents direct aid to private schools discriminates against religious and private, historically Black institutions. Suhr compared the lawsuit to a Supreme Court case out of Montana last year, Espinoza et al. v. Montana Department of Revenue et al.
“Though the state has come a long way, its past is with us still,” Suhr said. “This Blaine Amendment at the center of today’s case is one relic of that prior era, but today it is preventing historically Black colleges and universities and Catholic schools from receiving fair, equitable access to emergency COVID relief funding.”
Eugene Matthews, an attorney representing Adams and Gaines on the lawsuit, said the case is different from Espinoza because the state does not allow direct public aid to any private institutions, without consideration of race or religion.
“The difference is striking and clear,” Matthews said. “The Supreme Court itself has said, and this is what struck me most: the state need not subsidize private education, but once the state decides to do so, it cannot disqualify some private schools solely because they are religious. And the provision at issue doesn’t do that.”
U.S. District Judge Bruce Hendricks, who is presiding over the case, said she would make a decision about the injunction within the next few days.