ACLJ Filing Critical Amicus Brief on Behalf of Members of US House and Senate To Stop Teachers Union’s Attempt To Block Access to Quality Education


Jordan Sekulow

August 24, 2020

7 min read

School Choice



Unions and radical Left-run school districts are trying to stop families from providing their kids with a quality education.

The ACLJ is taking direct legal action on behalf of two U.S. Senators and five Members of the U.S. House of Representatives – and thousands of American families – to make sure every child receives the best educational opportunity available.

As we recently announced, the ACLJ has launched our new School Choice Initiative to fight for families’ right to send their children to whatever school they believe will best benefit them. Parents pay taxes to support the education system, but America’s public schools are failing them – and their kids. That’s why we support school choice as a way for parents to receive some of those tax dollars back in the form of vouchers or tax credits to send their children to the school of their choice, including private, religious, charter, or home schools.

This is especially critical as students face new Coronavirus-related challenges – to enable these students to succeed even in the midst of a pandemic.

South Carolina’s Governor Henry McMaster agreed with that idea and created a program to allow families to use federal funds through flexible grants to send their kids to private schools. As Gov. McMaster stated:

Private schools in our state provide an essential education to over 50,000 children. They provide parents the ability to choose the type of education environment and instruction they feel best suits their child’s unique needs. And a large number of these students come from working or low-income families – who – in the best economy – are barely able to scrimp and scrape together just enough money to pay their child’s tuition.

But now a radical Left-run local public school district and a teachers union have filed a lawsuit to block families’ rights. That case is now before the Supreme Court of South Carolina. As one report noted:

Opponents of Governor Henry McMaster’s Safe Access to Flexible Education grants, also called SAFE grants, filed a lawsuit last month. It came after McMaster allocated $32 million of GEER funds, which stands for Governor’s Education Emergency Relief funds, to the grant program that provides one-time scholarships to middle- and low-income students wanting to attend private schools.

An Orangeburg circuit judge heard the case last Wednesday but didn’t make a decision. On Tuesday, opponents of the SAFE grants filed a petition to take the case directly to the South Carolina Supreme Court.

We are urging the South Carolina justices to follow the lead of the U.S. Supreme Court who, as we told you, ruled against a ban on using tax dollars for private schools. As Chief Justice John Roberts wrote in the Court’s opinion at that time: “When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation.”

Clearly the same should apply here.

We have just filed an amicus brief at the Supreme Court of South Carolina on behalf of members of South Carolina’s U.S. Congressional Delegation – Sen. Lindsey Graham, Sen. Tim Scott, Rep. Jeff Duncan, Rep. Joe Wilson, Rep. Ralph Norman, Rep. Tom Rice, and Rep. William Timmons – in defense of Gov. McMaster’s use of CARES Act funds for, essentially, vouchers for kids who need help and choose private or religious schools.

The point we make in our brief is that Congress, in passing the CARES Act, intended flexibility in the use of these funds by Governors across the country to ensure that children impacted by the Coronavirus pandemic would be provided the best education possible and not be abandoned.

As we detail in our brief:

When Governor McMaster applied for, received, then used CARES Act funds to create the SAFE Grants program, administered by his Office, to award subgrants in support of tuition costs for students who need it to attend essential independent schools carrying out emergency educational services, his actions were precisely within the intent of Congress in passing the CARES Act.

It was the clear and well-reasoned intent of Congress to help all students, plainly in an emergency setting, supporting the Governor’s discretionary role to administer these funds. As the Governor has made clear, the SAFE Grants Program provides eligible low- and middle-income families (up to 300 percent of the federal poverty line, or $78,600 for a family of four) with a scholarship of up to $6,500 per student to pay tuition and fees at a private or religious school. The Governor anticipates that approximately 5,000 scholarships will be awarded in total for this fall’s rapidly approaching school year.  In using GEER funds this way, the Governor is acting squarely within Congress’s intent.

The terms used by Congress in creating the GEER Fund are plain and unambiguous and congressional intent is clear. Congress intended for these funds to be awarded to governors for immediate use to benefit students in a variety of ways, including by education-related entities deemed essential by governors in a national emergency.  Congress most assuredly did not limit school choice by excluding private or religious schools from “education related entity  ” and did not intend for students and families choosing independent schools, whether private or religious, to be excluded from the critical benefit of GEER funds.

One of the main components of our School Choice Initiative is that education should be student centered – not dictated by the whims of teachers unions and entrenched local school bureaucrats. We make this student focus a central point of our brief:

The Governor is using these funds for South Carolina students, just like Congress intended. Whether the funds end up being spent at a religious “education related entity” or not depends entirely upon the intervening act of the parents/guardians choosing that entity for their student’s education. This is aid to parents and families, not a “direct” benefit to religious schools in violation of Article XI, section 4 of South Carolina’s Constitution. The bottom line is that the student is the direct beneficiary. Schools, like parents, provide education and education related services and care to students. The religion (or not) of the education related entity is irrelevant. In creating the emergency relief fund at issue, Congress was and is concerned with students.

Our brief also reminds the SC Supreme Court that time is of the essence, as schools are about to start, if they haven’t already. This lawsuit is simply one more delay keeping kids from the quality education they deserve and to which they are entitled. If the federal government is going to send funding to states to provide creative solutions during these trying times, it should do so in a way that enables states to give parents more control and flexibility over their children’s education. The CARES Act did just that, and Gov. McMaster has acted lawfully.

These broken public schools don’t seem to be concerned with what’s best for students. They’re just afraid of losing those precious tax dollars. But if they can’t do a better job preparing all of our kids for a successful future, then we as parents should be enabled to send them to a school that can.

Here at the ACLJ, we are proud to stand with South Carolina’s congressional delegation to ensure that school choice is provided for students who need it most. And we will continue to advocate for school choice and for greater options for all families. As we reported, Sen. Tim Scott (SC) introduced the School Choice Now Act, which if enacted, would allocate 10% of all upcoming COVID-related education spending toward school choice programs. Specifically, the bill would appropriate these funds to states, who would in turn provide the funds to scholarship-granting organizations. Families could use these scholarships to send their kids to the school of their choice.

That could include homeschooling. It could include private schools and charter schools. And it could include religious schools. In fact, the language in the bill specifically prohibits blocking funds from any of these options.
After all, parents who pay taxes deserve every right to provide the best education as they see fit for their child. And if they decide it’s a private school, or even a religious or parochial school, then they should have that right and ability, regardless of their income or zip code.