Could South Carolina school districts use public resources to campaign against a state education bill in 1995?

Official title

Asking a number of questions concerning the legality of certain activities that were orchestrated by various school district administrators in an effort to arouse opposition to the education portion of the Annual Appropriations Bill that was being considered by the South Carolina House of Representatives.

Requester

The Honorable James S. Klauber, Member, House of Representatives

Plain-English summary

The legislator asked whether school administrators could use employees, facilities, and students to protest a proposed education budget and whether students needed written parental permission for press events. The 1995 informal opinion did not make a factual finding that the particular activities were lawful or unlawful. It said public spending required a public purpose and distinguished education or neutral information from advocacy of a specific legislative result. Whether the described activity crossed that line depended on its actual nature and ultimately could require judicial determination. The author did not decide whether participants had to register under lobbying or ethics laws, pointing instead to the state ethics commission’s role. On the two student-permission questions, he said state law did not appear to require parental consent in those circumstances, although a school district policy might.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG declare all district discussion of the education bill unlawful? A: No. The letter distinguished informative activity from advocacy and said the specific facts mattered.

Q: Did the letter approve using school resources to lobby against the bill? A: No. It said advocacy with public funds could fail the public-purpose requirement, depending on the activity.

Q: Did state law require written parental consent for the described press conference? A: The letter said it did not appear to, but a district policy might impose a requirement.

Q: Did the AG resolve lobbying registration?
A: No. The letter expressly left that issue outside its analysis and referred to the ethics commission’s role.

Background and statutory framework

The letter relied on the state constitutional public-purpose rule, prior AG opinions on government speech, and cases requiring a fact-specific public-benefit analysis. It answered the parental-consent questions separately.

Citations and references

• Art. X, § 5, cited for the public-purpose requirement.
• Caldwell v. McMillan and Anderson v. Baehr, cited on fact-specific public-purpose review.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-31-1995/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1995may31klauber.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

May 31, 1995

The Honorable James S. Klauber
Member, House of Representatives
5 l 8A Blatt Building

• Columbia, South Carolina 29211
  Re:

Informal Opinion

Dear Representative Klauber:
By your letter of April 26, 1995, you have raised several questions concerning the legality of certain activities that were recently orchestrated by various school district administrators in an effort to arouse opposition to the education portion of the Annual Appropriations Bill that was being considered by the South Carolina House of Representatives. Each of your questions will be addressed separately, as follows. Question 1 Does the South Carolina Code sanction the use of (a) public employees, (b) public buildings, (c) public facilities (telephones, photocopiers, postage meters, stationery, printing machines), and (d) school children in the custody of school officials to organize and execute political protests? This Office has previously issued advisory opinions that address questions similar to your own. By an opinion dated May 29, 1979, this Office determined that the St. Andrews Public Service District Commission would not be authorized to expend District funds to oppose formally the proposed incorporation of a portion of the District's sefVlce area.

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TELEPHONE: 803-734-3970

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;ACS!\llLE; 803-253-6283

The Honorable James S. Klauber
Page 2
May 31, 1995

The basis of the opinion was, first, that the South Carolina Constitution requires every expenditure of public funds to be for a public purpose. Art. X, § 5. Moreover, the legal authorities at that time were in apparent agreement that the expenditure of public funds to obtain or oppose legislation would not be authorized in the absence of express statutory language to the contrary. Since the District lacked statutory authorization to expend public funds to oppose the incorporation, the opinion concluded that the District's funds could not be used for that purpose. More recently, this Office examined the same issue in an opinion dated November 2, 1990. (Copy enclosed; ~ response to question 3.) Therein, we recognized the difficulty in articulating a per se rule because the law continues to evolve in this area. The courts now seem to be recognizing a difference between educating and informing the

• public on a particular issue, on the one hand and advocating a specific outcome, on the
  other. As was observed in that opinion:
  [W]e advise that the resolution of the question may ultimately be up to the courts. The law is still evolving in this area, and courts are becoming less reluctant to prohibit all aspects of government speech. On the other hand, a court must be assured that where public funds are expended, such activities possess a valid public purpose. The activities of an individual official, employee, or political subdivision (through its governing body) will require examination to determine whether such activities are educational, informative, or advocatory in nature .... (emphasis added). The courts have defined public purpose as one which has as its objective "the promotion of the public health, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within a given political division." Carll v. South Carolina Jobs-Economic Development Authoritv, 284 S.C. 438, 327 S.E.2d 331 (1988). In determining what constitutes a public purpose, courts resort to a factual analysis on a case by case basis. Generally, a balancing test is utilized, whereby the benefit to the public is weighed against the benefit to private individual(s) or corporation(s). Moreover, to be a public purpose, the advantage to the public must be direct, not merely indirect or remote. Caldwell v. McMillan, 224 S.C. 150, 77 S.E.2d 798 (1953). However, "the mere fact that benefits will accrue to private individuals or entities does not destroy public purpose." Bauer v. South Carolina State Housing Authoritv, 271 S.C. 219, 246 S.E.2d 869 (1978). Finally, as the court stated in Anderson v. Baehr, 265 S.C. 153,

The Honorable James S. K.lauber
Page 3
May 31, 1995

217 S.E.2d 43 (1975), each case must be determined on its own merits, considering each situation. Accordingly, the answer to your question appears dependent upon the nature of the activities undertaken by the school district administrators and employees. If such activities are merely educational or informative in nature, the courts are more likely to consider such an expenditure of public funds to be for a public purpose. However, if such activities are advocatory in nature, the courts may more readily reach the opposite conclusion. Of course, the foregoing addresses only the issue of the use of public funds for lobbying purposes. No attempt has been made to address whether anyone associated with such an effort would be required to register as a lobbyist or a lobbyist's principal pursuant to the Ethics, Government Accountability, and Campaign Reform Act of 1991

• (Section 2-17-5 et seq. and Section 8-13-100 et seq., S.C. Code Ann., 1976, as amended).
  By statute, the South Carolina State Ethics Commission is responsible for issuing opinions concerning the requirements of the Ethics Reform Act. Question 2 Would children who were provided scripts or who were coached ahead of time what to say at press conferences be required to have written permission from their parents or guardians to participate in such an event? Although state law does not appear to require parental consent under these circumstances, some districts may have a policy requiring such consent. Question 3 Would these children who were utilized as background properties for this political theater (on school property during the hours they were required by law to be in school) need written permission from their parents or guardians, many of whom could well have supported the actions of the House of Representatives. Again, state law does not appear to require parental consent under these circumstances, but certain school districts, by policy, may require such consent.

The Honorable James S. K.lauber
Page 4
May 31, 1995

This letter is an informal opinion only. It has been written by a designated Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. Sincerely,

;.et-JJdl~
Zeb C. Williams, III
Deputy Attorney General
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Enclosure