South Carolina

Admission #8 (May 23, 1788). Era: Original 13 — no federal school grant. Draft: Pass 1, 2026-04-30.

South Carolina’s school-funding story does not begin where the public-land states’ stories begin. There is no section sixteen, no doubled grant, no admission-act compact dedicating federal lands to the support of common schools. South Carolina ratified the United States Constitution on May 23, 1788, as the eighth state to do so, and entered the Union with its own colonial-era land system intact and its own ungranted lands its own to manage.¹ The federal school-grant template — section sixteen reserved “for the maintenance of public schools” in the township-and-range survey — would not be invented until the Land Ordinance of 1785 and would not be extended to twin sections sixteen and thirty-six until well into the nineteenth century, and then only on federal public lands ceded to the national government.² South Carolina’s lands were never federal public lands. There was, accordingly, no school-trust corpus of federal-grant origin to defend, dissipate, or litigate over. What South Carolina built instead — and what it has alternately defended, weakened, and rebuilt over a century and a half — is a state constitutional duty: a positive obligation on the General Assembly to maintain a system of free public schools open to all children. The story of that duty is the closest South Carolina analogue to the school-trust story, and it has been every bit as contested.

The constitutional locus is Article XI, section 3, of the South Carolina Constitution of 1895, in its current form: “The General Assembly shall provide for the maintenance and support of a system of free public schools open to all children in the State and shall establish, organize and support such other public institutions of learning, as may be desirable.”³ The provision in its current form dates to 1973 — Act 42 ratified that year rewrote sections 1 through 4 of Article XI and produced the modern free-public-schools mandate and the modern prohibition on direct public aid to private educational institutions.⁴ But the lineage runs deeper. The 1868 Reconstruction Constitution’s Article X had been the first South Carolina constitution to constitutionalize a duty to establish public schools open to all children regardless of race, an obligation born of the Reconstruction-era effort to construct a universal-education system in a state that had until emancipation made it a crime to teach enslaved people to read.⁵ The 1895 Constitution, drafted by the Tillman-era convention, carried a school clause forward but layered explicitly segregationist provisions over it — provisions that would not be fully unwound until well into the twentieth century.

The most consequential — and most painful — episode in the constitutional history of the state’s school-funding obligation came in the immediate aftermath of Brown v. Board of Education. Briggs v. Elliott, originating in Clarendon County, was one of the five cases consolidated into Brown and is the case the Supreme Court was deciding when it announced in 1954 that separate educational facilities are inherently unequal.⁶ In Clarendon County, Black parents had sued the school district over the absence of school buses for Black children — the local district provided thirty buses for white students and none for Black students — and the litigation expanded into a frontal challenge to the separate-but-equal doctrine itself. The plaintiffs prevailed at the Supreme Court of the United States. South Carolina did not accept the result quietly.

In 1954 — the same year Brown came down — the South Carolina General Assembly enacted Act 653, repealing the former Article XI, section 5 language that required the General Assembly to “provide a liberal system of free public schools.”⁷ The repeal was part of a broader segregation-resistance posture across the former Confederacy in which several states amended their constitutions to authorize the abolition of public schools rather than integrate them. South Carolina’s Supreme Court would later identify this 1954 repeal as the predecessor gap before the 1973 rewrite restored the free-public-schools mandate in current Article XI, section 3.⁸ This is a fact, not an interpretation: the legislature responded to a federal constitutional mandate that public schools be open to all children by removing from the state constitution the provision requiring that public schools exist at all. The provision did not stay removed; the 1973 revision restored a stronger version of the free-public-schools duty.⁹ But the period between 1954 and 1973 sits in the constitutional record as a documented episode in which the state constitution’s commitment to free public schools was deliberately weakened in response to an integration order. The schema substrate flags this episode as “structural seizure,” and the description fits: it was not drift, it was action.¹⁰

A parallel diversion attempt operated through statute rather than constitutional amendment. Act 297 of 1963 authorized state scholarship grants for children attending private schools — “tuition grants” payable to private institutions, which in 1963 South Carolina were effectively segregated. In Brown v. South Carolina State Board of Education (1968), a three-judge federal court enjoined the program, holding that its purpose, motive, and effect were to evade the desegregation mandate of Brown v. Board of Education; the United States Supreme Court summarily affirmed.¹¹ Brown v. South Carolina State Board is not a school-trust case in the public-land sense, but it is doctrinally important to the South Carolina line: it stands for the principle that the State of South Carolina cannot redirect public education resources to private schooling as a mechanism for circumventing constitutional duties owed to the public-school system. The doctrinal inheritance from that holding — public funds for private schooling, evaluated on purpose, motive, and effect rather than on labels — has run through the state’s school-funding constitutional jurisprudence ever since.

The 1973 rewrite of Article XI did not merely restore the free-public-schools clause; it added a new prohibition. Article XI, section 4 forbade the use of “the credit of the State or any of its political subdivisions” for “the direct benefit of any religious or other private educational institution.” The South Carolina Supreme Court had already invalidated public tuition grants for students attending independent higher-education institutions in Hartness v. Patterson (1971) under the pre-1973 Article XI, section 9, and Hartness supplied the immediate doctrinal background for the rewrite.¹² Durham v. McLeod (1972) upheld a student-loan program after concluding the loan fund was held as a trust fund and no public money or credit was used to make or guarantee the loans within the meaning of the former section.¹³ Together the cases drew the line that section 4 would later codify: direct public aid to private educational institutions is impermissible; indirect, student-centered benefits may pass under particular conditions.

The architecture has been tested most consequentially in the modern era through two parallel lines. The first concerns adequacy and equity. Beginning in 1993, rural plaintiff districts brought suit under Article XI, section 3, contending that the State had failed to provide their students an adequate education. In Abbeville County School District v. State (1999), the South Carolina Supreme Court held for the first time that Article XI, section 3 imposes a constitutional duty on the State to provide students the opportunity to receive a “minimally adequate education,” and remanded for trial on whether that duty was being met.¹⁴ Fifteen years later, in Abbeville II (2014), the court held that the State had failed to meet that duty in the plaintiff rural districts.¹⁵ The 2014 ruling — although later dismissed by the South Carolina Supreme Court in 2017 on legislative-action mootness grounds — remains the major modern construction of the school clause as judicially enforceable.¹⁶ Abbeville is not a school-trust case in the public-land sense. It is, however, the closest South Carolina analogue to a trust-enforcement case in a public-land state: a holding that the state constitution’s school clause is not a hortatory directive but a legally binding duty whose breach is justiciable.

The second modern line concerns whether public money — under whatever statutory label — can be redirected to private schooling. Richland County v. Campbell (1988) upheld South Carolina’s Education Finance Act and Education Improvement Act shared-funding structure against an Article XI, section 3 challenge, emphasizing legislative discretion over school-finance details.¹⁷ But the section 4 line has gone the other way. In Adams v. McMaster (2020), the South Carolina Supreme Court invalidated Governor Henry McMaster’s $32 million SAFE Grants Program — federal pandemic-relief funds the Governor had directed to private-school tuition grants — holding that the program used public funds for the direct benefit of private educational institutions in violation of Article XI, section 4. The court treated federal GEER funds deposited and controlled through state mechanisms as public funds and rejected the argument that parental choice attenuated the direct benefit.¹⁸ In Eidson v. South Carolina Department of Education (2024), the court extended the analysis to the 2023 Education Scholarship Trust Fund Act, which had created state-funded accounts for qualifying education expenses including private-school tuition. The court held that ESTF appropriations remained public funds and that using them for private-school tuition violated Article XI, section 4 — and, importantly for any public-fund-and-trust-label argument, the court was skeptical that the statutory ESTF was a true trust at all, describing it as a government budget allocation tool rather than a trust corpus.¹⁹ The Eidson court’s refusal to let a “trust” label change the constitutional character of public money is directly relevant to school-trust doctrine in other states: a legislative label cannot, on its own, transmute appropriated public funds into private property.

Today, South Carolina manages its public-school funding through a combination of state general appropriations under the Education Finance Act of 1977 (which set a foundation-program base student cost), the Education Improvement Act of 1984 (which added a one-cent dedicated sales tax for education), the South Carolina Education Lottery (established 2001, with the statutory requirement that proceeds supplement and not supplant existing education funding), local property taxes (constrained by Act 388 of 2006 on owner-occupied residential property), and federal aid.²⁰ Governance flows through the State Board of Education, the State Department of Education, and the Superintendent of Education — a constitutionally-named statewide elected officer under Article VI of the 1895 Constitution — together with the statutory Education Oversight Committee.²¹ None of these bodies are trustees of a school-trust corpus, because no such corpus exists. The Superintendent is the head of the public-school administration; the Board and Department are policy-and-administration bodies; and South Carolina’s K-12 funding is, properly described, a general-appropriation-plus-dedicated-revenue system rather than a trust distribution.

The dedicated-revenue streams are not entirely free of the diversion patterns that play out in trust-corpus states. The South Carolina Inspector General reported in 2023 that inaccurate scholarship projections by the Commission on Higher Education had caused approximately $152.9 million in excess Education Lottery Account funds to accumulate over fiscal years 2018-19 through 2022-23 — money that had been collected for education-lottery purposes and held in carryforward balances rather than distributed.²² The Inspector General characterized the accumulation as waste; CHE leadership disputed that any eligible student had been denied a scholarship.²³ The 2006 Attorney General opinions on lottery-fund supplanting capture an earlier version of the same anxiety: that a dedicated education-revenue stream, even one statutorily required to supplement rather than supplant, can be functionally substituted for general-fund support if budget-shifting maneuvers are permitted.²⁴ These are not corpus-depletion stories — there is no corpus — but they are the structural cousins, and they sit on the same axis of accountability questions that animate the trust-state cases.

South Carolina’s constitutional school-funding history, then, is a state-derived parallel to the federal-grant trust story rather than a chapter within it. The state has no Common School Fund of federal-grant origin, no permanent corpus, no irreducible-fund clause, no fiduciary trustee board. What it has instead is a positive constitutional duty on the legislature itself, layered on top of a Reconstruction-era universal-public-schools commitment that survived a deliberate 1954 weakening and was restored, in stronger form, in 1973. The state has produced a modern adequacy line in Abbeville that is judicially enforceable and produced — twice — findings that the State has failed to meet its constitutional duty. It has produced a modern public-funds-and-private-schools line in Adams and Eidson that has held the constitutional prohibition against direct public aid to private educational institutions firm against pandemic-era and voucher-era pressures, and has explicitly rejected the use of “trust” labels to convert public money into private. And the state holds in its constitutional record the documented fact of a 1954 amendment that responded to a federal desegregation mandate by removing the requirement that public schools exist at all — a piece of evidence that any account of state fidelity to public-education obligations across the twentieth century must reckon with.

For a project that asks how durable a state’s commitment to free public schools really is, South Carolina is the case in which the commitment was once removed by deliberate act of the legislature, restored by deliberate act of the people, and is now defended in the courts case by case. The substrate is different from the public-land states. The pattern is recognizable.

Footnotes