SC will withhold $1.5M earmark from SC Christian group while lawsuit proceeds

South Carolina won’t disburse a $1.5 million budget earmark awarded to a religious education nonprofit unless a court orders it to.

Lawyers for the state comptroller general, treasurer and superintendent of education vowed Thursday to heed the court’s wishes while taking no position on the legality of the contested earmark, which state lawmakers earlier this year granted Christian Learning Centers of Greenville County, a provider of released time religious instruction.

The organization, which offers public school students Bible instruction at off-campus locations during the school day, subsequently announced plans to use the money to build a charter school for disadvantaged students in Greenville County.

Four South Carolina residents sued the state over the appropriation and requested a preliminary injunction to freeze the money until the legal case was resolved. Lawyers for the plaintiffs argue the earmark violates the state Constitution, which prohibits publicly funding private educational institutions and prevents the General Assembly from passing any law “respecting an establishment of religion.”

Former Chief Justice Jean Toal, who is hearing the case, Thursday denied the injunction based on the assurances of lawyers for three of the four defendants, who promised their clients would not transfer the money to Christian Learning Centers.

“(The state officials named in this lawsuit) have illustrated on many occasions that they will abide by decisions made with respect to the legitimacy of appropriations and I have full confidence they would do so here,” said Toal, whose comments during Thursday’s proceedings communicated considerable skepticism about the legality of the earmark appropriation.

The former chief justice also denied a motion to dismiss the case brought by Gov. Henry McMaster, the only defendant who has asserted the earmark is legal.

Steven Edward Buckingham, an attorney for the plaintiffs, said Thursday that the earmark appropriation to Christian Learning Centers mirrors McMaster’s earlier attempt to spend federal COVID-19 aid on tuition grants for private school students. The State Supreme Court found unanimously that the governor’s grant program was unconstitutional.

Buckingham argued the Christian nonprofit’s name and mission, as stated on its website and in public tax documents, make clear what the organization stands for. A funding proposal Christian Learning Centers sent the governor’s office lays out its vision for a residential school where students would receive biblical instruction and makes clear its plans for the money, he said.

Buckingham rebutted assertions by McMaster’s legal team that the appropriation was legal because the organization now says it will build a public charter school with the money. Christian Learning Centers announced its charter school plans in late September, about a week after the lawsuit was filed and roughly a month after telling The State newspaper it wouldn’t build a school at all.

“It is impermissible for anybody, be it a private religious institution or otherwise, to receive an appropriation from the state and then switch course,” he said, adding that charters, by law, cannot engage in religious instruction as CLC had proposed to do.

Grayson Lambert, an attorney for McMaster, said the organization presumably would not have announced its intention to open a charter school unless it planned to comply with charter school requirements. Buckingham’s assertion that the proposed charter would offer religious instruction is merely an assumption, he said.

Toal told Lambert she thought such an assumption was reasonable in this case.

”I don’t think they can assume anything else,” she said. “Because that’s all Christian Learning Centers does right now.”

Lambert tried to make the case that because the budget didn’t specify how the Christian nonprofit was to use the earmark appropriation, the organization was free to decide its plans for the money at a later date. But Toal wasn’t hearing it.

“What we’re being asked to do is evaluate the appropriation that was made,” she said. “That’s the basis I have to use, not the basis of what they say in the future they will do.”

After the hearing, Buckingham said he felt encouraged, despite Toal’s denial of the injunction he sought.

“As you saw from the way the hearing was going, it seemed like the judge had grave concerns about the constitutionality of this appropriation,” he said.

The case now moves into the discovery phase, where both parties exchange the information and evidence they intend to present at trial.