Charleston diocese, Black colleges seek federal injunction to get COVID-19 relief

court house charleston Historic court house and post office in Charleston, South Carolina | Jon Bilous/Shutterstock

A 19th-century constitutional amendment in South Carolina is wrongly blocking coronavirus relief money for Catholic schools, an attorney for the Charleston diocese said in federal court Monday.

The state’s version of a Blaine Amendment, a policy barring state funding of religious institutions, was enacted in 1895. The Diocese of Charleston and an association of colleges are challenging it in court, claiming that it unlawfully shut off Catholic schools from critical relief funds during the pandemic. 

The lawsuit argues that amendment violates the free exercise and equal protection clauses of the U.S. Constitution. A hearing in the case was held at a federal district court in Charleston, South Carolina, on May 3. 

The plaintiffs’ attorney Daniel Suhr asked U.S. District Judge Bruce Hendricks to issue an injunction against the amendment, arguing that it is rooted in efforts to deprive Catholics and Blacks of education funds.

“South Carolina has come a long way since 1895,” said Suhr. “But though the state has come a long way, its past is with us still.” 

He argued that the Blaine Amendment still prevents Catholic schools and historically Black colleges and universities from “fair, equitable access” to the relief funds, the Charleston Post and Courier reported.

Some $34 million in federal funds are at stake in the case, provided as discretionary spending under the federal CARES Act which passed Congress in March 2020 for pandemic relief. 

South Carolina Gov. Henry McMaster had designated $32 million to help low-and moderate-income families in enrolling or remaining in private schools during the pandemic; he set aside another $2.4 million to assist with health upgrades and distance-based learning technology at the state’s historically Black colleges and universities, most of which are private.

However, the state Supreme Court blocked these efforts under the state’s Blaine Amendment.

In response, the Roman Catholic Diocese of Charleston filed a lawsuit against South Carolina last month. The diocese has 33 schools and 7,000 students. South Carolina Independent Colleges and Universities, a nonprofit organization that includes five historically Black colleges and universities and 20 schools in total, is a co-plaintiff in the case.

Bishop Robert Guglielmone of Charleston has commented on the lawsuit, saying, “This appeal to our state’s courts is not only to, at long last, expunge the anti-Catholic and racist sentiment that still haunts our past. It is about creating a more inclusive, uplifting future for parents and children who seek an education that best fits their values and needs of their students.”

“Many families have been significantly hurt by the COVID pandemic and they should not be denied financial assistance based on where they desire to send their children to school,” he added.

The Blaine Amendment dates back to South Carolina’s 1895 constitutional convention. Versions of Blaine Amendments were passed by many states in the late-19th century, forbidding public funding of religious or “sectarian” causes.

The plaintiffs have pointed to the historical context of the provision, which was backed by the national anti-Catholic group American Protective Association, and South Carolina politician and eventual-U.S. Senator Ben “Pitchfork” Tillman, then-governor of the convention.

“Pitchfork Ben’s racial bigotry lined up nicely with other delegates’ anti-Catholic bigotry,” the plaintiffs said. They objected that a Baptist food pantry, a Catholic hospital, and a Muslim mosque can receive COVID-19 relief, but not schools or universities affiliated with religion.

In a previous statement, the plaintiffs charged that the Blaine Amendment was passed “in order to suppress the education of newly freed slaves and to enable discrimination against Catholic immigrants.” They called the amendment “born of bigotry and prejudice, based on race and religion.”

Last month, Suhr said the lawsuit is based on a principle everyone can support. “We’re fighting to strike down a century-old law that was enacted with the purpose of discriminating against our fellow citizens,” he said. 

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McMaster had sought to allocate $14 million in private school vouchers, but the state Supreme Court’s decision put that effort into limbo as well, the Charleston Post and Courier reported. While McMaster disagreed with the state Supreme Court Decision, his attorney said, he must enforce the law.

The law, however, could face significant scrutiny given recent court cases.

In June 2020, the Supreme Court ruled in a 5-4 decision that the Montana state constitution’s ban on public funding of religious institutions violated the First Amendment. The provision constituted “discrimination against religious schools and the families whose children attend them,” the majority opinion stated. That case concerned a ban on students at religious schools benefitting from a state scholarship program funded by tax credits.

The New Mexico Supreme Court in 2018 upheld a book-lending program that gives school children at public and private schools equal access to state-approved textbooks; the program had been challenged under the state Blaine Amendment. The 2017 U.S. Supreme Court decision in Trinity Lutheran Church v. Comer found that a state cannot deny public benefits to religious entities simply because they are religious.                                           

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