South Carolina Sees Controversy over School Choice, First Amendment

Published June 1, 2008

A controversy over whether a school district has the right to deny taxpayers access to communication channels bought with tax dollars, on the basis of their political views, has arisen in South Carolina.

South Carolina’s Lexington 1 school district has been disseminating anti-school choice messages on its communication network without offering school choice advocates equal time. At least one citizen in the school district disagrees with this policy and is pressing the matter in court.

“This is all about money and power,” said plaintiff Randy Page, who is president of South Carolinians for Responsible Government. “Propping up a system just for the sake of propping up a system is wrong.”

Access Denied

Though Lexington 1 offered its communication network free of charge to Choose Children First, a group that lobbied against a school choice bill proposed by Gov. Mark Sanford (R) in 2005 that would have offered parents vouchers and tax credits to send their children to private schools, it denied Page’s request for equal time to discuss the benefits of the proposal. The bill eventually fell seven votes short of passage in the legislature.

The school district’s attorney, David Duff, says public bodies are not required to turn public communication networks into forums to satisfy every citizen who happens to disagree with the government’s political stance.

“If the government–in this case, the school district–wants to communicate its perspective on an issue that’s related to its mission or agenda, it should be able to without every citizen being able to go on their Web site and create a debate on the issue,” Duff said.

After a U.S. District Court judge in Columbia sided with the school district in July 2007, Page appealed. The Fourth U.S. Circuit Court of Appeals in Virginia heard arguments on March 20. A decision is expected before the end of October.

National Implications

The case, which has implications for both school choice and the First Amendment, is being watched, and financially supported, by persons on both sides of the issue.

Page says he was denied access to the same Web site and e-mail list-serves made available to Choose Children First simply because the district disagreed with his views.

Duff says the district is invoking a legal doctrine that has developed in American courts that protects government speech. He acknowledged that by taking this route, the district is making a “somewhat esoteric and little-recognized assertion.”

It’s also a threat to Page’s right of free speech, said his attorney, Kevin Hall.

“Randy Page was denied the opportunity to respond on the same sources based upon a particular viewpoint. When you do that, you’ve violated the First Amendment,” Hall said.

“If the district is allowed to do this,” Hall continued, “it would be the same as the ACLU, the feminists, the Nazis, or whatever wanting to have a parade and the government saying: ‘We’re not going to grant you access to the streets because we don’t like your viewpoint.'”

Dissenting Views

Both sides have had help from outside the state. Page, who’s fighting the legal battle as an individual taxpayer, is being supported by school choice activists, including the Parents in Charge Foundation and its chairman, New York financier Howard Rich.

According to a March 11 news release issued by the foundation, if the lower court’s ruling stands “the education establishment will continue to use its resources as a means to lobby legislatures and distribute political propaganda against school choice initiatives and any other measures that they perceive as threats to their monopoly power.”

The district is funding the legal effort–led by a high-powered Washington, DC law firm–with taxpayer dollars, Hall said. Board members blame the expensive legal battle on Page.

When asked why it’s using school resources for a legal battle that’s been going on for three years, Lexington 1 board chairman Edwin Harmon said, “It’s a disappointment that it got to this point,” and referred all other questions to Duff.

Recruiting Parents

Lexington 1 campaigned actively against the bill, which would have offered tax credits and vouchers to give parents choices about where to send their children to school. A sample letter to the editor for parents on the district’s Web site claimed state leaders “have a moral responsibility to strengthen public schools–not abandon them with tax credits and vouchers that will divert money used to support my child’s school.”

Page says maintaining the status quo will simply allow the bureaucracy to continue to defend a failing system.

“Sadly, the Palmetto State has the worst graduation rate, lowest test scores, and highest percentage of failing public schools in the entire nation,” Page said. “Over the past four years alone, South Carolina politicians have dumped a staggering $1 billion into the state’s non-competitive K-12 abyss.”

Page estimates more than 200,000 South Carolina children are “currently trapped in failing or below-average schools.”

Jim Waters ([email protected]) is director of policy and communications at the Bluegrass Institute for Public Policy Solutions in Bowling Green, Kentucky.

For more information …

“Page v. Lexington School Report,” Americans for Limited Government: