Can the South Carolina High School League put private and charter schools in their own athletic class or playoff?

Official title

Opinion addressing whether Fiscal Year 2023-24 Budget Proviso 1.50 prohibits establishing a separate classification and state championship for private schools and charter schools.

Requester

Requested by Dr. Jerome Singleton, Commissioner, South Carolina High School League.

Plain-English summary

The Commissioner of the South Carolina High School League asked whether a state budget proviso would block the League from addressing "competitive balance," the recent success of private and charter member schools in the smaller classifications, by creating a separate classification and state championship for those non-traditional schools. The League had not made a formal proposal but wanted guidance before its reclassification process began.

The Attorney General focused on the text of FY 2023-24 Budget Proviso 1.50. That proviso bars a public school district from spending funds to join or support any interscholastic athletic association unless the association's rules guarantee private and charter schools "the same rights and privileges" as other members, and bars expelling them, unreasonably withholding membership, or restricting their ability to participate in interscholastic athletics, "including, but not limited to, state playoffs or championships based solely on its status as a private school or charter school."

The AG noted the proviso does not mention classifications directly. But it read the Legislature's intent as ensuring private and charter schools get meaningful participation in interscholastic athletics. A separate playoff division raised an immediate concern: because the proviso expressly forbids restricting participation in "state playoffs or championships" based solely on private/charter status, a classification built solely on a school's status as a non-traditional member could be found to violate the proviso. The AG stopped short of a definitive answer, since no formal proposal existed and resolving a specific plan would require findings of fact the Office cannot make.

What this means for you

The South Carolina High School League and its member schools

The opinion reads Proviso 1.50 to bar restricting private or charter schools from interscholastic athletics, including state playoffs and championships, based solely on their status. A separate classification or championship aimed only at non-traditional schools, drawn solely on that status, is the kind of arrangement the AG warned could violate the proviso. The opinion does note the proviso text does not mention classifications as such, and that the League must set "reasonable standards" for admission, so the risk turns on how a proposal is structured.

Private and charter schools competing in League athletics

The proviso is written to protect your meaningful participation in interscholastic athletics, including state playoffs and championships. The AG's analysis is that you cannot be siloed out of championship competition based solely on your status as a private or charter school.

State legislators and education policymakers

The AG did not decide whether any particular competitive-balance plan is lawful, and flagged that a definitive answer requires evaluating a specific proposal. The opinion identifies the tension: the proviso's language protecting participation in "state playoffs or championships" sits directly against a separate-championship approach keyed to school status.

Common questions

Q: Does Proviso 1.50 ban separate athletic classifications for private and charter schools?
A: Not in so many words. The AG noted the proviso does not address classifications directly. But it does forbid restricting private/charter schools from participating in interscholastic athletics, including state playoffs or championships, based solely on their status, which is where a status-based separate championship runs into trouble.

Q: So could the League create a separate championship for non-traditional schools?
A: The AG flagged it as legally risky. If the classification is based solely on a school's status as a non-traditional member, a court "may well find it violates the proviso." The Office could not give a final answer without a specific proposal.

Q: Why couldn't the Attorney General just answer yes or no?
A: Because no formal proposal existed and deciding whether a specific plan complies would require findings of fact, which the AG's office does not have authority to make.

Q: What does the proviso actually require of an athletic association?
A: That its constitution, rules, or policies guarantee private and charter schools the same rights and privileges as other members, do not expel them or unreasonably withhold membership, set reasonable admission standards, and give a rejected school written reasons within five business days.

Background and statutory framework

Budget provisos are temporary conditions attached to the annual appropriations act; they carry the force of law for that fiscal year. FY 2023-24 Budget Proviso 1.50 (SDE: Interscholastic Athletic Association Dues) conditions public school districts' spending on athletic-association membership: districts may not fund an association unless its rules guarantee private and charter schools equal rights and privileges and protect their ability to participate in interscholastic athletics, expressly "including, but not limited to, state playoffs or championships based solely on its status as a private school or charter school."

The AG applied standard statutory-construction principles, treating the proviso text as the best evidence of legislative intent (Hodges v. Rainey), aiming to ascertain and effectuate that intent (Mitchell v. City of Greenville), and reading the provision for a practical, reasonable, and fair interpretation consonant with the lawmakers' purpose (State v. Henkel). Because the Office cannot find facts, it declined to rule on a specific, not-yet-drafted proposal.

Citations and references

Statutes:
- FY 2023-24 Budget Proviso 1.50 (SDE: Interscholastic Athletic Association Dues; conditions on public funding of athletic associations)

Cases:
- Mitchell v. City of Greenville, 411 S.C. 632, 770 S.E.2d 391 (2015) (ascertain and effectuate legislative intent)
- Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000) (plain text is best evidence of intent)
- State v. Henkel, 413 S.C. 9, 774 S.E.2d 458 (2015) (practical, reasonable, fair interpretation)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-fiscal-year-2023-24-budget-proviso-1-50-prohibits-establishing-a-separate-classification-and-state-championship-for-private-schools-and-charter-schools/
• Original PDF: https://www.scag.gov/media/p45fbesj/03434422.pdf

Original opinion text

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Alan Wilson
Attorney General

November 8, 2023

Dr. Jerome Singleton
Commissioner
S.C. Highschool League
P.O. Box 21 1575
Columbia, SC 29221

Dear Dr. Singleton:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter
states the following:

As Commissioner of the South Carolina High School League (“League”), I am
writing to request an advisory opinion regarding the application of 2023-2024
budget Proviso 1 .50, as it relates to the League's authority to address competitive
balance between traditional public schools and non-traditional schools, i.e., private
school members and public charter school members.
By way of background, the 2023-2024 Annual Appropriations Act contains a
budget proviso (Proviso 1 .50) for the Department of Education that contains the
following provisions, and I have highlighted the language below in question:

1 .50. (SDE: Interscholastic Athletic Association Dues)
(A) A public school district supported by state funds shall not use
any funds or permit any school within the district to use any funds

to join, affiliate with, pay dues or fees to, or in any way financially
support any interscholastic athletic association, body, or entity
unless the constitution, rules, or policies of the association, body, or
entity contain the following:

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Dr. Jerome Singleton
Page 2
November 8, 2023

(2) (a) guarantees that private or charter schools are afforded the
same rights and privileges that are enjoyed by all other members of
the association, body, or entity. A private or charter school may not
be expelled from or have its membership unreasonably withheld by

the association, body, or entity or restricted in its ability to
participate in interscholastic athletics including, but not limited to,
state playoffs or championships based solely on its status as a private
school or charter school. The association, body, or entity shall set
reasonable standards for private or charter school admission. A
private or charter school denied membership must be provided, in
writing within five business days, the reason or reasons for rejection

of its application for membership;

Budget Proviso 1.50 (emphasis added).

As you may be aware, there has recently been considerable discussion regarding
the success of non-traditional member schools in our smallest classifications. The
League and its members have been taking a close look at ways to address
competitive balance.

As part of those discussions with various stakeholders,

including state legislators, one suggestion has been the creation of a separate
classification and corresponding state championship for non-traditional member
schools who may meet certain criteria.
To date, the League has not made any formal proposals for the creation of a separate
classification and/or state championship for non-traditional member schools.
However, as part of the discussion of the merits of such a proposal, questions have

arisen as to whether a separate classification and/or state championship for nontraditional member

schools would violate

particularly, the sections highlighted above.

Budget Proviso

1.50

and more

To be clear, the proposals being

discussed would not preclude any member school - traditional or non-traditional from competing for a state championship sanctioned by the South Carolina High
School League.

However, the proposal would present a change by potentially

grouping schools in a classification based on their status as a non-traditional
member school.

Therefore, the League requests clarification as to whether Budget Proviso 1.50

would prevent it from considering proposals to address competitive balance that

Dr. Jerome Singleton
Page 3
November 8, 2023

would create a separate classification and/or state championship for non-traditional
member schools. The League appreciates your guidance on this matter.

As our

reclassification process will begin on November 15, 2023, we would request a
response prior to that date so that we may have some guidance before moving
forward.

Law/Analysis
In order to address your question, this opinion will analyze the proviso according to the
principles of statutory construction. When interpreting legislation, the primary goal is to determine
the General Assembly’s intent. See Mitchell v. City of Greenville, 41 1 S.C. 632, 634, 770 S.E.2d
391, 392 (2015) (“The cardinal rule of statutory interpretation is to ascertain and effectuate the
legislative intent whenever possible.”). Where a statute’s language is plain and unambiguous, “the

text of a statute is considered the best evidence of the legislative intent or will.” Hodges v. Rainey,
341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). Further, “[a] statute as a whole must receive a

practical, reasonable and fair interpretation consonant with the purpose, design, and policy of
lawmakers.” State v. Henkel, 413 S.C. 9, 14, 774 S.E.2d 458, 461 (2015), reh’g denied (Aug. 5,
2015).

The plain language of Proviso 1.50 does not address classifications. It does, however,
explicitly address “rights and privileges,” being “expelled,” having “membership unreasonably
withheld,” and being “restricted in its ability to participate in interscholastic athletics including . . .
state playoffs or championships based solely on its status as a private school or charter school.”
FY 2023-24 Budget Proviso 1.50(A)(2)(a) (emphasis added). Given the concerns articulated in
the proviso, it seems clear the Legislature intended for private schools and charter schools to be

able to offer their students meaningful participation in interscholastic athletics.

Although your letter states that the League has not made a formal proposal to create a

separate classification or playoff, after discussing the issues raised in your letter, this Office
understands the contemplated classification would not alter which schools private schools or
charter schools compete against during the regular seasons for the sports in which they participate.
Rather, the classification would create an additional playoff division. The League is required to
set “reasonable standards” for admission of these non-traditional member schools, but it cannot

adopt a classification that would deny them “the same rights and privileges that are enjoyed by all
other members.” Id. While we do not have a formal proposal to evaluate, a potential concern with

a separate playoff system is immediately apparent.

The prohibition in Proviso 1.50(A)(2)(a)

against restrictions on participation in interscholastic athletics expressly includes “state playoffs
or championships.” If the proposed classification is solely based on a school’s “status as a non-

traditional member school,” a court may well find it violates the proviso because it is a restriction
on the basis of status as a private school or charter school. Id. Again, this Office has not evaluated

Dr. Jerome Singleton
Page 4
November 8, 2023

a specific proposal and wc could not determine with finality whether it would comply with or
violate Budget Proviso 1.50 because that would require findings of fact. Sec Op. S.C. Att'y Gen.,
2006 WL 1207271 (April 4, 2006) (“Because this Office does not have the authority of a court or
other fact-finding body, wc arc not able to adjudicate or investigate factual questions”).

Sincerely,

A

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

^Robert D. Cook
Solicitor General