BRIEF: School Choice in the States – October 2020


Washington, D.C.

Congress received and the city’s council enacted Washington, D.C.’s 2021 budget request act, which includes a $40 million request for the federal program that operates the D.C. Opportunity Scholarship Program.



On October 29, the U.S. Court of Appeals for the First Circuit ruled against parents in Maine who wish to choose a religious school for their children’s education under Maine’s town tuitioning program. Parents were permitted to choose religious schools through town tuitioning from the beginning of the program in 1873 until 1982, when an attorney general suggested that including religious schools may be contrary to the U.S. Constitution (Maine has no Blaine Amendment) and legislators changed the law to exclude religious schools. The Court distinguished the U.S. Supreme Court ruling earlier this year in Espinoza v. Montana Dept of Revenue. The First Circuit said that while Espinoza prohibits states from blocking religious schools as parent choices because those schools are religious. Maine does not block religious schools based on their status as religious schools, but rather, on whether the private schools will use tuition funding received from parents for religious purposes. This case will be appealed to the U.S. Supreme Court by our friends at the Institute for Justice. The EdChoice Legal Defense & Education Center will file an amicus brief in support of the Institute for Justice’s defense of Maine parents. You can access the amicus brief of the EdChoice Legal Defense & Education Center filed at the First Circuit Court of Appeals here.

Carson v. Makin, Case No. 0:19-civil-01746 (U.S.C.A. 1st Circuit, 2019).


On October 23, the U.S. District Court in the District of Maryland GRANTED the parties’ joint motion to extend deadlines for discovery and filing pretrial motions. The new deadline to gather documents to be used in court at trial is February 12, 2021; the new deadline to file pretrial motions is April 16, 2021.

Bethel Ministries, Inc v. Salmon, Case 1:19-cv-01853-SAG.

South Carolina

On October 7, the Supreme Court of South Carolina ruled that the Governor’s use of CARES Act Education Stabilization Funds (distributed to the state through the Governors Emergency Education Relief Fund – GEER Funds) for SAFE Grants—a program allowing parents to access funds for a variety of educational resources, including tuition for their children at nonpublic schools—“constitutes the use of public funds for the direct benefit of private educational institutions within the meaning of, and prohibited by, Article XI, Section 4 of the South Carolina Constitution.” You can access the amicus brief of the EdChoice Legal Defense & Education Center here.

Adams vs. McMaster, Appellate Case No. 2020-001069.

On October 22, Gov. McMaster filed a Petition for Rehearing, asking the Court to grant rehearing and 1) dismiss the case based on Petitioners’ lack of standing, or 2) issue a substituted opinion finding that federal GEER funds are not public funds thus article XI, section 4 of the South Carolina Constitution does not apply.

Also on October 22, the United States filed a Motion for Leave to File an Amicus Curiae Brief in support of Gov. McMaster’s Petition for Rehearing. The U.S. Attorney alleged that the South Carolina Supreme Court erred in holding that, “GEER Funds given to the private schools for student tuition must be returned pro rata to the State Treasury if the student leaves the school before the school term ends,” and that GEER funds, “remain funds of the State to be used presumably however the General Assembly chooses.” The U.S. Attorney stated that “federal funds do not lose their federal identity until they have been spent according to the purposes for which they were appropriated by Congress.” Furthermore, GEER Funds must only be used according to CARES Act requirements and unused funds must revert back to the federal government in accordance with that law.

Adams vs. McMaster, Appellate Case No. 2020-001069. Pending.