ELECTRONICALLY FILED - 2023 Jan 27 12:24 PM - CHARLESTON - COMMON PLEAS - CASE#2022CP1005451

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

) FOR THE NINTH JUDICIAL CIRCUIT
COUNTY OF CHARLESTON ) CASE NO: 2022-CP-10-05451
)
SOUTH CAROLINA FREEDOM CAUCUS, )
)
Plaintiff, )
) DEFENDANTS’ MOTION TO DISMISS
v. )
)
CHARLESTON COUNTY SCHOOL )
DISTRICT and DONALD KENNEDY, in )
his official capacity as Superintendent of the )
Charleston County School District, )
)
Defendants. )
)

TO PLAINTIFF ABOVE NAMED AND ITS LEGAL COUNSEL:

PLEASE TAKE NOTICE that the undersigned attorneys for the Defendants will move

before the Presiding Judge of the Ninth Judicial Circuit at the Charleston County Courthouse, or

at such other office as the Court may direct, after ten (10) days from the date of service hereof or

at such time and place as the Court may direct, for an Order dismissing Plaintiff’s Complaint

pursuant to South Carolina Rules of Civil Procedure 12(b)(1) and (6) and on the basis that

Plaintiff’s Complaint fails to allege subject matter jurisdiction and fails to state facts sufficient to

constitute a cause of action and therefore fails as a matter of law and should be dismissed in its

entirety.

INTRODUCTION

Plaintiff South Carolina Freedom Caucus, a legislative special interest caucus comprised

of 13 members of the South Carolina House of Representatives, brings this action against

Defendants, Charleston County School District (“CCSD”) and Superintendent Donald Kennedy,

contending that the reading curriculum currently taught in certain Charleston County public

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schools violates state law. The Complaint is deficient for failure to demonstrate standing and

failure to state a claim. The Complaint does not allege that a single one of Plaintiff’s members

represents Lowcountry constituents or is a parent of a child currently enrolled in CCSD and,

therefore, Plaintiff does not have standing to bring this action. Additionally, the Complaint fails

to satisfy the requirements of the Declaratory Judgments Act and misapprehends the state law it

contends Defendants have violated. For the reasons discussed below, Defendants respectfully ask

that the Court dismiss this action in its entirety with prejudice.

BACKGROUND

On November 28, 2022, Plaintiff filed the Complaint; the following facts are derived

therefrom. Plaintiff alleges that the 2022-2023 Appropriations Bill H. 5150, Part 1B Section 1,

H630, § 1.93 (“H. 5150”) precludes schools from using state funds to “indoctrinate students or

staff in any way” of “Critical Race Theory-Derived Ideas.” Compl., ¶ 2. Plaintiff alleges that

CCSD nonetheless “continues to develop and use curriculum that promotes” the “beliefs” of

“Critical Race Theory-Derived Ideas.” Id. at ¶ 6. Plaintiff alleges that the “School District’s

enabler is EL Education, which supplies curricula and professional training for many schools in

the District.” Id. at ¶ 7. EL Education “is a company that seeks ‘to transform public schools and

districts’ to provide ‘equitable outcomes’ through a language arts curriculum, professional

development, and school design services.’” Id. at ¶ 15. CCSD “recently announced that it was

adopting EL Education’s curriculum in at least 52 schools, including in 23 of 34 elementary

schools during the 2022-2023 school year.” Id. at ¶ 18. “According to its website describing that

curriculum, EL Education is an ‘antiracist organization’ that ‘built our curriculum with equity in

mind.” Id. at ¶ 19. “Charlotte-Mecklenburg Schools recently chose EL Education’s curriculum

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‘because across all of its modules and topics they begin to address issues of social justice, racism,

anti-racism and cultural proficiency.” Id. at ¶ 23.

Plaintiff alleges Defendants have violated H. 5150, South Carolina’s Equal Protection

Clause, South Carolina’s Safe School Climate Act, and S.C. Code Ann. § 59-63-40. Plaintiff seeks

declaratory and injunctive relief.

LEGAL STANDARDS

Under Rule 12(b)(1), SCRCP, a defendant may make a motion to dismiss based on lack of

jurisdiction over the subject matter. A motion to dismiss for lack of standing challenges the

court’s subject matter jurisdiction. South Carolina Public Interest Foundation v. Wilson, 437 S.C.

334, 878 S.E.2d 891, 894 (2022) (citation omitted). “If a plaintiff lacks standing, he does not have

the right to proceed to the merits of his claim against the defendant.” Id. at 895.

Under Rule 12(b)(6), SCRCP, a defendant may make a motion to dismiss based on a failure

to state facts sufficient to constitute a cause of action. In considering a motion to dismiss pursuant

to Rule 12(b)(6), SCRCP, the Court must base its ruling solely upon the allegations set forth on

the face of the complaint. Doe v. Greenville County Sch. Dist., 375 S.C. 63, 66–67, 651 S.E.2d

305, 307 (2007).

A. Plaintiff Lacks Standing to Bring this Lawsuit.

Plaintiff does not have standing to challenge the curriculum that is used in CCSD schools.

Plaintiff describes itself as a “legislative special interest caucus comprised of members of the South

Carolina House of Representatives.”1 Compl., ¶ 9. According to the Complaint, Plaintiff’s

members include Rep. Adam Morgan, Rep. RJ May, Rep. Josiah Magnuson, Rep. Mike Burns,

1
A “legislative special interest caucus” is defined as “two or more legislators who seek to be
affiliated based upon a special interest.” S.C. Code Ann. § 2-17-10(21).
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Rep. Bill Chumley, Rep. Bobby Cox, Rep. Patrick Haddon, Rep. Stewart Jones, Rep. Steven Long,

Rep. Ryan McCabe, Rep. Alan Morgan, Rep. Melissa Oremus, and Rep. Ashley Trantham. Id.

The Complaint does not allege that any of Plaintiff’s 13 members are enrolled in CCSD schools

or parents of children enrolled in CCSD schools.2

“Standing refers to a party’s right to make a legal claim or seek judicial enforcement of a

duty or right.” S.C. Dep't of Soc. Servs. v. Boulware, 422 S.C. 1, 7, 809 S.E.2d 223, 226

(2018) (quoting Michael P. v. Greenville Cty. Dep't of Soc. Servs., 385 S.C. 407, 415, 684 S.E.2d

211, 215 (Ct. App. 2009)). “Standing to sue is a fundamental requirement in instituting an

action.” Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 639, 528 S.E.2d 647, 649

(1999). And a lack of standing deprives the Court of subject matter jurisdiction. S.C. Pub. Int.

Found. v. Wilson, 437 S.C. 334, 340, 878 S.E.2d 891, 894 (2022). Standing may be acquired (1)

by statute, (2) under the principle of “constitutional standing,” or (3) via the “public importance”

exception to general standing requirements. Preservation Society of Charleston v. South Carolina

Department of Health and Environmental Control, 430 S.C. 200, 845 S.E.2d 481, 486 (2020)

(quoting Freemantle v. Preston, 398 S.C. 186, 192, 728 S.E.2d 40, 43 (2012)).

Statutory standing exists when a statute confers a right to sue on a party; determining

whether a statute confers standing is an exercise in statutory interpretation. Youngblood v. S.C.

Dep't of Soc. Servs., 402 S.C. 311, 317, 741 S.E.2d 515, 518 (2013). Constitutional standing

mirrors Article III of the United States Constitution and, at a minimum, contains three elements:

2
A review of the online directory of the South Carolina State House reflects that the 13 members
are representatives of districts in the Midlands and the Upstate. South Carolina Legislature Online
- Member Biography (scstatehouse.gov),
https://www.scstatehouse.gov/member.php?chamber=H. See S.C. R. Evid. 201(b) (“A judicially
noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned”).
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(1) the plaintiff must have suffered an “injury in fact,” i.e., an invasion of a legally
protected interest that is concrete and particularized, and actual or imminent; (2)
there must be a causal connection between the injury and the conduct complained
of; and (3) it must be likely that the injury will be redressed by a favorable decision.

Preservation Society of Charleston, 845 S.E.2d at 486 (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)). Under South Carolina law, “[w]hen no statute confers standing, the

elements of constitutional standing must be met.” Id. at 486-87 (quoting Youngblood, 741 S.E.2d

at 518). In limited circumstances, where a significant public interest is at stake, a court may waive

a party’s failure to meet the full constitutional standing requirements. See, e.g., Carnival Corp. v.

Historic Ansonborough Neighborhood Ass'n, 407 S.C. 67, 753 S.E.2d 846 (2014). Plaintiff does

not plead standing under any South Carolina statute. Nor, as discussed below, does Plaintiff plead

facts sufficient to confer constitutional standing or to render the public interest exception

applicable.

Plaintiff alleges that it seeks to promote principles such as “the rule of law” and “equal

protection for all citizens under the law,” and “has a significant interest in ensuring that laws

enacted by the General Assembly are given effect.” Compl., ¶ 9. The general principles Plaintiff

professes to concern itself with are principles that every citizen of South Carolina could claim an

interest in and therefore do not satisfy the necessary concrete and particularized elements of

standing. Carnival Corp., 753 S.E.2d at 850 (“A plaintiff raising only a generally available

grievance about government—claiming only harm to his and every citizen’s interest in proper

application of the Constitution and laws, and seeking relief that no more directly and tangibly

benefits him than it does the public at large—does not possess standing”) (quoting Lujan, 504 U.S.

at 573-74) (alternations and internal quotation marks omitted). The imminent prejudice necessary

to establish standing must be of a personal nature to the party laying claim and “not merely of

general interest common to all members of the public.” Baird v. Charleston County, 333 S.C. 519,

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511 S.E.2d 69, 75 (1999). Cf. ATC South, Inc. v. Charleston Cnty., 380 S.C. 191, 669 S.E.2d 337,

341 (2008) (holding a taxpayer lacks constitutional standing when he “suffers in

some indefinite way in common with people generally”) (emphasis in original). “If individuals

and groups could invoke the authority of a [] court to forbid what they dislike for no more reason

than they dislike it, we would risk exceeding the judiciary’s limited constitutional mandate and

infringing on powers committed to other branches of government.” American Legion v. American

Humanist Association, 139 S. Ct. 2067, 2099 (2019) (Gorsuch, J., concurring) (cautioning that

courts would then “start to look more like legislatures, responding to social pressures rather than

remedying concrete harms, in the process supplanting the right of the people and their elected

representatives to govern themselves”). See Antonin Scalia, The Doctrine of Standing as an

Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 881 (1983) (“[J]udicial

doctrine of standing is a crucial and inseparable element of that principle [of constitutional

separation of powers], whose disregard will inevitably

produce . . . an overjudicialization of the processes of self-governance.”)

Plaintiff has not alleged a legally protected interest, how it is injured by virtue of the

challenged conduct, or that the alleged injury is concrete and particularized. In other words,

Plaintiff has not alleged a personal stake in the subject matter of this litigation. Glaze v. Grooms,

324 S.C. 249, 478 S.E.2d 841 (1996)). It must follow that Plaintiff has not demonstrated it has

constitutional standing to bring this action.3

3
To the extent Plaintiff would assert associational standing, it would have to satisfy the following
elements: “(1) at least one member would otherwise have standing (statutory, constitutional, or
otherwise) to sue in his or her own right, (2) the interests at stake are germane to the organization’s
purpose, and (3) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Preservation Society of Charleston, 845 S.E.2d at 487 (citing
Beaufort Realty Co. v. Beaufort Cty., 346 S.C. 298, 551 S.E.2d 588, 589 (Ct. App. 2001)). Plaintiff
has not alleged any legally protected interest held by one of its members or how any of its members
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To the extent that Plaintiff may argue it has an interest in enforcing the law because its

members are legislators, this is also wrong. To begin, the legislative special interest caucus has not

established that it has authority to bring an action. In Senate by & through Leatherman v.

McMaster, 425 S.C. 315, 319–20, 821 S.E.2d 908, 910 (2018), the South Carolina Supreme Court

made clear that individual legislators and groups of legislators do not have standing to sue. The

Court adopted long-established principles of standing under federal law that require courts to

dismiss “lawsuits brought by individual members of Congress, and even lawsuits brought by

committees of the House or Senate, without express authorization by the House or Senate.” Id.;

see also, e.g., Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1953–54 (2019) (“Just

as individual members lack standing to assert the institutional interests of a legislature, a single

House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a

whole”) (citation omitted). Thus, this Court “must examine the [legislators’] threshold authority

to bring the action,” by, for example, having been granted that authority by the legislature as a

whole. McMaster, 425 S.C. at 320, 821 S.E.2d at 910; see also, e.g, Newman v. Richland Cnty.

Historic Pres. Comm’n, 325 S.C. 79, 480 S.E.2d 72, 74 (1997) (“[T]he [Oklahoma Court of

Appeals] held an ‘individual member of a governing body does not have the power to institute

lawsuits, or file appeals in his or her own name. Such a result could create judicial as well as

political chaos.’ We agree”).

is personally injured by virtue of the challenged conduct. At a minimum, Plaintiff cannot meet the
first element of associational standing. See id. (“[t]o establish associational standing, an
organization must first show that at least one of its members has standing in his or her own right”).
See also Carnival Corp., 753 S.E.2d at 851 (holding plaintiffs failed to allege a particularized
injury either to themselves or their members and therefore could not demonstrate associational
standing).
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There is no reason to think that the General Assembly intended to authorize legislative

special interest caucuses to sue to enforce the law. Under state law, such a caucus is formed by

“two or more legislators who seek to be affiliated based upon a special interest,” such as “a

representation of sportsmen and women desiring to enhance and protect hunting, fishing, and

shooting sports.” S.C. Code Ann. § 2-17-10(21). State law does not purport to grant any particular

powers to the caucus; rather, it only limits what they can do. See id. (“Under no circumstances

may a legislative special interest caucus engage in any activity that would influence the outcome

of an election or ballot measure.”). Failure to demonstrate legislative authorization to bring this

suit is fatal.

Even more fundamentally, the interest in enforcement of the laws is not a legislative

interest at all. Under elementary separation of powers doctrine, “[t]he legislative department makes

the laws [and] the executive department carries the laws into effect.” S.C. Pub. Int. Found. v. S.C.

Transp. Infrastructure Bank, 403 S.C. 640, 649, 744 S.E.2d 521, 526 (2013) (internal citations

omitted). South Carolina’s Constitution makes that clear: “The supreme executive authority of this

State shall be vested in a Chief Magistrate, who shall be styled ‘The Governor of the State of South

Carolina.’” Art. IV, section 1; see also, e.g., Section 15 (“The Governor shall take care that the

laws be faithfully executed. To this end, the Attorney General shall assist and represent the

Governor.”). Except in very narrow circumstances not relevant here, see Art. I § 13, the

Constitution gives the legislature no power to enforce its law directly against citizens. Otherwise,

“the legislative, executive, and judicial powers of the government shall be forever separate and

distinct from each other, and no person or persons exercising the functions of one of said

departments shall assume or discharge the duties of any other.” Art. I, § 8.

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Time and again, the South Carolina courts have upheld this basic structural distribution of

power. E.g., Knotts v. S.C. Dep’t of Nat. Res., 348 S.C. 1, 8, 558 S.E.2d 511, 515 (2002)

(“Legislature does not have the power to create a law then execute it.”); Aiken Cnty. Bd. of Ed. v.

Knotts, 274 S.C. 144, 149–50, 262 S.E.2d 14, 17 (1980) (“As a general rule, the Legislature may

not, consistently with the constitutional requirement here involved, undertake to both pass laws

and execute them by setting its own members to the task of discharging such functions by virtue

of their office as legislators.”). Not surprisingly, the courts of this state have never ratified a theory

of legislative – much less legislator – standing that would permit legislators to bring enforcement

actions themselves. Other states that adhere to constitutional separation of powers have

emphatically rejected such a notion. E.g., Morrow v. Bentley, 261 So. 3d 278, 292 (Ala. 2017)

(alleged failure to follow law is insufficient to give standing to legislator); Markham v. Wolf, 635

Pa. 288, 306, 136 A.3d 134, 145 (2016) (“[t]he legislators' claim of aggrievement is only that the

[challenged act] . . . diminishes the effectiveness of, or is inconsistent with, prior-enacted

legislation. Yet, these claims of injury reflect no impact on [legislators’] right to act as legislators,

and are more, in our view, in the nature of a generalized grievance about the correctness of

governmental conduct”); Commonwealth ex rel. Beshear v. Commonwealth Off. of the Governor

ex rel. Bevin, 498 S.W.3d 355, 368 (Ky. 2016) (“Individual legislators simply do not have a

sufficient personal stake in a dispute over the execution or constitutionality of a statute”).

Finally, Plaintiff likewise has not demonstrated it qualifies for the “public importance”

exception to the general standing requirements. Under South Carolina law, subject to certain

circumstances, “standing may be conferred upon a party when an issue is of such public importance

as to require its resolution for future guidance.” Sloan v. Sanford, 357 S.C. 431, 593 S.E.2d 470,

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472 (2004) (citations omitted). Application of the exception “is determined by the competing

policy concerns underlying the exception”; those concerns are as follows:

Citizens must be afforded access to the judicial process to address alleged

injustices. On the other hand, standing cannot be granted to every individual who
has a grievance against a public official. Otherwise, public officials would be
subject to numerous lawsuits at the expense of both judicial economy and the
freedom from frivolous lawsuits.

Carnival Corp., 753 S.E.2d at 853 (quoting Sloan, 593 S.E.2d at 472). “The key to the public

importance analysis is whether a resolution is needed for future guidance. It is this concept of

‘future guidance’ that gives meaning to an issue which transcends a purely private matter and rises

to the level of public importance.” Bodman v. State, 403 S.C. 60, 742 S.E.2d 363, 367 (2013)

(citation omitted).

Any argument that the public importance exception applies here is belied by the very

allegations set forth in the Complaint, which make clear that procuring future guidance is not

Plaintiff’s objective. First, Plaintiff asserts that the State Legislature has passed a law that

allegedly prohibits the exact action that Plaintiff alleges CCSD has engaged in. See, e.g., Compl.,

¶¶ 2, 6. There is no question of authority for the Court to resolve—the General Assembly has

authority to create legislation and CCSD has authority to direct classroom curriculum. Instead,

the dispute concerns, in relevant part, whether CCSD has violated H. 5150 by adopting curriculum

that contains certain instruction.4 The lawsuit simply does not implicate a critical question that the

General Assembly has failed to address. Cf. Evins v. Richland County Historic Preservation

Commission, 341 S.C. 15, 532 S.E.2d 876 (2000) (holding that individual possessed standing to

question validity of property conveyance); Baird v. Charleston County, 511 S.E.2d at 75 (holding

4
Plaintiff’s allegation that “Defendants’ failure to adhere to H. 5150 is ultra vires,” Compl., ¶
40, is conclusory and does not, in and of itself, make the public importance exception applicable
here.
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individual doctors had standing to challenge County’s authority to issue hospital bonds);

Thompson v. South Carolina Commission on Alcohol and Drug Abuse, 267 S.C. 463, 229 S.E.2d

718 (1976) (holding plaintiffs had standing given the “wide concern” of the questions posed,

including whether the violation of a certain state statute rendered a person a patient or a criminal,

depending on which county the person was in).

Second, this dispute does not center on the need for future guidance. As discussed in detail

below, H. 5150 is devoid of the phrase “Critical Race Theory,” and no degree of statutory

construction could cause a reader to determine otherwise. Rather, this lawsuit centers on Plaintiff’s

members’ individual beliefs and opinions regarding the instruction teachers provide students in

CCSD schools. Resolution of this lawsuit on the merits would involve the application of state law

to particular (although largely unspecified) CCSD curricular choices. Any such resolution would

have no implication beyond the scope of this lawsuit, and would provide no useful guidance for

different curricular choices. Furthermore, H. 5150 is a budget proviso and therefore temporary in

nature. The limited temporal application of H. 5150 further undercuts the argument that resolution

of this lawsuit is necessary to provide future guidance.

Finally, the public importance exception exists for the benefit of the State’s citizens who

are subject to the policy choice they seek to challenge. See Carnival Corp., 753 S.E.2d at 853

(stating “[c]itizens must be afforded access to the judicial process to address alleged injustices”).

Unlike most South Carolinians, Plaintiff’s members are legislators who, by virtue of their office,

are able to pass legislation to clarify the law if it is ambiguous and to incentivize enforcement if

the law is ignored. Cf. id. (“Harms suffered by the public at large, like those Plaintiffs allege here,

are to be remedied by the legislative and executive branches. If existing laws and regulations or

their enforcement fail to protect the public from harm, it is incumbent upon the public to seek

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reform through their elected officials or failing that, at the ballot box.”). Allowing legislators to

take advantage of an exception to standing meant to protect individual citizens from government

excess turns the logic of the exception on its head. And by allowing legislators to both enact laws

and then bring suit to enforce them, applying the exception here would run afoul of separation of

powers principles discussed above. Plaintiff has not alleged facts sufficient to show that the public

interest exception applies and therefore Plaintiff is not entitled to have the requirement of standing

waived.

There can be no question that the education and wellbeing of our State’s youth is a matter

of profound public interest. But this lawsuit is not concerned with protecting or promoting that

interest. Simply put, Plaintiff is not an appropriate party to challenge Defendants’ decisions

regarding what curriculum it adopts and implements. This is particularly true considering the

significant number of individuals who attend CCSD public schools and who, unlike Plaintiff, have

a personal stake in the education they receive.

For these reasons, Plaintiff lacks standing to bring this lawsuit and the Complaint should

be dismissed in its entirety with prejudice.

B. Plaintiff Fails to State a Claim.

Even if the Court finds that Plaintiff has alleged sufficient facts to confer standing, the

Complaint fails to set forth the allegations necessary to state a claim for any of the four causes of

action.

As a preliminary matter, the Complaint raises no issue suitable for declaratory judgment.

The Declaratory Judgments Act (the “Act”) provides that “[c]ourts of record within their respective

jurisdictions shall have power to declare rights, status, and other legal relations whether or not

further relief is or could be claimed.” S.C. Code Ann. § 15–53–20 (1976). Despite this seemingly

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broad language, the Act “has its limits.” Sunset Cay, LLC v. City of Folly Beach, 593 S.E.2d 462,

466 (S.C. 2004). To state a cause of action under the Act, a party must demonstrate a justiciable

controversy. Id. (citing Power v. McNair, 177 S.E.2d 551, 553 (S.C. 1970)). “A justiciable

controversy is a real and substantial controversy which is appropriate for judicial determination,

as distinguished from a dispute or difference of a contingent, hypothetical or abstract character.”

Id. “An adjudication that would not settle the legal rights of the parties would only be advisory in

nature and, therefore, would be beyond the intended purpose and scope of the Act.” Id. As

discussed with respect to Plaintiff’s lack of standing, Plaintiff has no legal rights to assert in regard

to what curriculum CCSD uses in its schools. Cf. Farmer v. CAGC Ins. Co., 819 S.E.2d 142, 147

(S.C. App. 2018) (finding justiciable controversy existed where party affected by statute asked

court to define how the statute impacted that party’s rights). As such, the dispute Plaintiff presents

for adjudication is essentially a dispute in the abstract, the resolution of which would result in

nothing more than an advisory opinion.

As a secondary matter, the EL Education curriculum of which Plaintiff now complains was

approved for use in public schools by the State Board of Education after an extensive vetting

process. See generally S.C. Code of Regulations R. 43-70. CCSD “may submit for review

materials which in [its] opinion best suit the needs of the students in [its] care,” S.C. Code of

Regulations R. 43-70 § 14; however, the State Board of Education alone is vested with the

authority to “[p]rescribe and enforce courses of study for the free public schools,” and to

“[p]rescribe and enforce the use of textbooks and other instructional materials for the various

subjects taught or used in conjunction within the free public schools of the State . . . [,]” S.C. Code

Ann. §§ 59-5-60(6),(7). Therefore, no curriculum is used in CCSD schools without approval of

the State Board of Education. To the extent Plaintiff takes exception with CCSD “continu[ing] to

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develop and use curriculum,” that Plaintiff finds offensive, Compl. ¶ 6, CCSD plainly does not

have statutory authority to independently adopt curriculum and instructional materials.

Furthermore, to the extent Plaintiff essentially seeks to direct or otherwise control the curriculum

used in CCSD schools, this would constitute an impermissible usurpation of the State Board of

Education’s statutory authority.

1. The Complaint Fails to Allege a Violation of H. 5150

Plaintiff’s first cause of action argues that H. 5150 “prohibits Defendants from using state

monies to indoctrinate students or teachers in Critical Race Theory-Derived Ideas,” and that

Defendants “are training teachers in Critical Race Theory-Derived Ideas, developing curriculum

and lesson plans for students based on those ideas, and otherwise disregarding the strictures of H.

5150.” Compl., ¶¶ 38, 39. However, the Complaint fails to specify any actions of the CCSD that

do not comply with H. 5150.

H. 5150 states, in relevant part, that:

no monies shall be used by any school district or school to provide instruction in,
to teach, instruct, or train any administrator, teacher, staff member, or employee to
adopt or believe, or to approve for use, make use of, or carry out standards,
curricula, lesson plans, textbooks, instructional materials, or instructional practices
that serve to inculcate any of the following concepts: (1) one race or sex is
inherently superior to another race or sex; (2) an individual, by virtue of his race or
sex, is inherently racist, sexist, or oppressive, whether consciously or
unconsciously; (3) an individual should be discriminated against or receive adverse
treatment solely or partly because of his race or sex; (4) an individual’s moral
standing or worth is necessarily determined by his race or sex; (5) an individual, by
virtue of his race or sex, bears responsibility for actions committed in the past by
other members of the same race or sex; (6) an individual should feel discomfort,
guilt, anguish, or any other form of psychological distress on account of his race or
sex; (7) meritocracy or traits such as a hard work ethic are racist or sexist, or were
created by members of a particular race to oppress members of another race; and
(8) fault, blame, or bias should be assigned to a race or sex, or to members of a race
or sex because of their race or sex. Nothing contained herein shall be construed as
prohibiting any professional development training for teachers related to issues of
addressing unconscious bias within the context of teaching certain literary or

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historical concepts or issues related to the impacts of historical or past
discriminatory policies.

First, the words “Critical Race Theory” are not present anywhere in this provision. Plaintiff

refers to Critical Race Theory and “Critical Race Theory-Derived Ideas” throughout the Complaint

without drawing any substantiated connection between its interpretation of what those terms mean

and the law it claims CCSD is violating. The Complaint asserts that H. 5150 “prohibits, in essence,

[] using state money to indoctrinate teachers and students in the theories of racial primacy, which

‘reject the philosophy of colorblindness as inherently racist.’” Compl., ¶ 3. Plaintiff cites no

support for accepting this description as an official summation of the law, and it is not.

This lawsuit essentially showcases the personal opinions held by Plaintiff’s members, who

apparently believe that any instruction on varying perspectives regarding race constitutes state-

sanctioned training in racism. Plaintiff’s members are attempting to translate a topic that causes

them personal offense into a cause of action against Defendants. This is impermissible, and an

imprudent use of judicial resources, especially when the law Plaintiff contends Defendants are

violating does not on its face apply to the curriculum Plaintiff is challenging.

To that end, and putting aside the complete omission of the phrase “Critical Race Theory”

in H. 5150, the factual allegations fail to show that CCSD is in violation of the law. Rather, the

allegations demonstrate: EL Education creates curriculum designed to promote principles of

inclusiveness and equity and to empower students and teachers to be “antiracist,” Compl., ¶ 19;

EL Education views education as an engine for disrupting structural racism, id. at ¶ 20; at least one

other school district has adopted EL Education’s curriculum because it addresses issues such as

“social justice, racism, anti-racism, and cultural proficiency, id. at ¶ 23; EL Education embraces

thinking about “equity,” “antiracism, “decentering whiteness,” and “achieving equitable

outcomes,” id. at ¶¶ 27, 28; and EL Education promotes forming counter-narratives to mainstream

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beliefs and helping teachers and students “develop a critical consciousness through which they

challenge the status quo of the current social order,” id. at ¶¶ 32, 36. In other words, the

curriculum, as alleged in the Complaint, advances the unmistakable objective of inclusivity as set

forth in H. 5150. Indeed, the law specifies the importance of “professional development training

for teachers related to issues of addressing unconscious bias within the context of teaching certain

literary or historical concepts or issues related to the impacts of historical or past discriminatory

policies.” None of the allegations asserted in the Complaint spell out a violation of the law as

enacted. Therefore, Plaintiff fails to state a claim as to its first cause of action and the claim should

be dismissed.

2. The Complaint Fails to Allege a Violation of the Equal Protection Clause.

As its second cause of action, Plaintiff contends that Defendants “have engaged in

impermissible racial stereotyping, differential treatment based on race, and promotion of a racially

hostile environment,” by “developing professional training, curricula, and lesson plans around

Critical Race Theory-Derived Ideas and forcing students and teachers to participate.” Compl., ¶

44. Plaintiff claims that these “actions discriminate based on race and therefore violate equal

protection.” Id.

Article I, section 3 of the South Carolina Constitution provides: “The privileges and

immunities of citizens of this State and of the United States under this Constitution shall not be

abridged, nor shall any person be deprived of life, liberty, or property without due process of law,

nor shall any person be denied the equal protection of the laws.” “The sine qua non of an equal

protection claim is a showing that similarly situated persons received disparate treatment.”

Bodman, 742 S.E.2d at 367 (quoting Grant v. S.C. Coastal Council, 319 S.C. 348, 354, 461 S.E.2d

388, 391 (1995)).

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As an initial matter, the Equal Protection clause “‘keeps governmental decisionmakers

from treating differently persons who are in all relevant respects alike.’” Moss v. Spartanburg Cty.

School Dist. No. 7, 676 F. Supp. 2d 452, 459 (D.S.C. 2009) (quoting Morrison v. Garraghty, 239

F.3d 648, 654 (4th Cir. 2001)). Plaintiff is not an individual capable of enduring disparate

treatment. “In order to survive dismissal on an equal protection claim, a plaintiff must allege facts

sufficient to show that he was ‘treated differently from others with whom he is similarly situated

and that the unequal treatment was the result of intentional or purposeful discrimination.’” Rogers

v. United States Department of Health and Human Services, 466 F. Supp. 3d 625, 649 (D.S.C.

2020) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)). Plaintiff has not, and

cannot, allege that Defendants have treated it differently from others with whom it is similarly

situated. And Plaintiff cannot rest its claim on the violation of rights of others. See Warth v.

Seldin, 422 U.S. 490, 499 (1975) “[T]he plaintiff generally must assert his own legal rights and

interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”). On

this basis alone the Complaint must be dismissed.

Second, as discussed above with respect to H. 5150, the factual allegations demonstrate

that CCSD has implemented curriculum, applicable to all students where the curriculum is

adopted, to promote thoughtfulness and inclusivity with respect to the topic of race. The

Complaint includes not a single allegation of disparate treatment by Defendants. Plaintiff alleges

that CCSD has adopted curriculum that “instructs teachers to more explicitly be antiracist and

teach antiracism,” and promotes empowering teachers “to recognize bias and support students to

go beyond awareness and to disruption.” Compl., ¶ 19. Plaintiff does not allege anywhere in the

Complaint that Defendants have treated one group of students differently from other similarly

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situated students on account of their race. Plaintiff has not stated a claim for violation of the Equal

Protection clause and this claim should be dismissed.

3. The Complaint Fails to Allege a Violation of S.C. Code Ann. § 59-63-130

As a third cause of action, Plaintiff contends that Defendants have “harmed and demeaned

students” and “caused disruption to the orderly operation of schools” by “developing curricula and

lesson plans around Critical Race Theory-Derived Ideas,” all in violation of the Safe School

Climate Act. Compl., ¶ 47. The Complaint sets forth zero factual allegations to support this

contention.

The General Assembly enacted the Safe School Climate Act in 2006 to “prevent school

harassment, intimidation, or bullying; to instruct local school districts to adopt a policy prohibiting

harassment, intimidation, or bullying . . .”; “to provide that the State Board of Education shall

develop model policies”; to incorporate policy into training programs; and to define certain terms.

SC B. Hist., 2006 Reg. Sess. H.B. 3573. The Complaint claims that Defendants are in violation

of S.C. Code Ann. § 59-63-130, which prohibits any person from engaging in (1) “harassment,

intimidation, or bullying”; or (2) “reprisal, retaliation, or false accusation against a victim, witness,

or one with reliable information about an act of harassment, intimidation, or bullying.” S.C. Code

Ann. 59-63-130(A). The statute defines “[h]arassment, intimidation, or bullying” as:

a gesture, an electronic communication, or a written, verbal, physical, or sexual act

that is reasonably perceived to have the effect of:

(a) harming a student physically or emotionally or damaging a student’s property,

or placing a student in reasonable fear of personal harm or property damage; or

(b) insulting or demeaning a student or group of students causing substantial

disruption in, or substantial interference with, the orderly operation of the school.

Plaintiff’s third cause of action appears to be structured around the contention that

Defendants are engaged in harassment, intimidation, or bullying by adopting the challenged

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curriculum. First, and as discussed throughout this Motion, the allegations reflect only that CCSD

has implemented a curriculum that seeks to promote conscious thought and collaboration with

respect to the topic of race. The Complaint simply does not describe an act undertaken by

Defendants that remotely fits the statutory definition of what it means to harass, intimidate, or

bully. Plaintiff asserts in conclusory fashion that Defendants have developed “curricula and lesson

plans,” around ideas such as “students being oppressors based on their skin color.” Compl., ¶ 47.

But not a single paragraph of the Complaint describes an incident or event where a teacher

provided instruction that resulted in the classification of students according to their race. Nor is

there a single paragraph that references how the challenged curriculum directs teachers to classify

students according to their race.

Second, the Complaint raises no allegations that anyone, outside of Plaintiff’s members,

perceives the challenged curriculum as harmful to students, demeaning to students, or causing

substantial disruption with respect to the operation of schools. To the extent Plaintiff’s members

embrace this perception, any such perspective is objectively unreasonable considering, at a

minimum, the lack of supporting factual allegations of activity undertaken by Defendants that

satisfies the definition of harassment, intimidation, or bullying. Furthermore, as discussed in the

section regarding standing, Plaintiff has alleged no personal interest in the curriculum that is taught

in CCSD schools. The subjective perspective of Plaintiff’s members is wholly irrelevant to

Defendants’ determination of what instruction would best serve and enrich CCSD students. This

claim is entirely unsupported and should be dismissed.

4. The Complaint Fails to Allege a Violation of S.C. Code Ann. § 59-63-40

As a fourth and final cause of action, Plaintiff contends that “[b]y developing curricula and

lesson plans around Critical Race Theory-Derived Ideas, Defendants are de facto excluding

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students from schools based on their race,” in violation of S.C. Code Ann. § 59-63-40. Compl., ¶

50. Section 59-63-40 is entitled, “Discrimination on account of race, creed, color, or national

origin prohibited,” and provides:

(1) No person shall be refused admission into or be excluded from any public school
in the State on account of race, creed, color or national origin.

(2) Except with the express approval of a board having jurisdiction, no student shall
be assigned or compelled to attend any school on account of race, creed, color or
national origin, or for the purpose of achieving equality in attendance or increased
attendance or reduced attendance, at any school, of persons of one or more
particular races, creeds, colors, or national origins; and no school district or
attendance area, by whatever name known, shall be established, reorganized or
maintained for any such purpose, provided that nothing contained in this section
shall prevent the assignment of a pupil in the manner requested or authorized by his
parents or guardian, and further provided that nothing in this section shall be
deemed to affect, in any way, the right of a religious or denominational educational
institution to select its pupils exclusively or primarily from members of such
religion or denomination or from giving preference to such selection to such
members or to make such selection to its pupils as is calculated to promote the
religious principle for which it is established.

The Complaint contains no allegation that Defendants have excluded any student from a

CCSD school on account of the student’s race. Nor does the Complaint provide an example of

how any individual student was effectively excluded from a CCSD school on account of his or her

race, to the extent that “effective” exclusion can form the basis of a claim. Nor does the Complaint

raise a single allegation of discrimination at the hands of Defendants. As with the other three

causes of action, there is simply no factual support in the Complaint for this claim and it should be

dismissed.

CONCLUSION

For the reasons stated, Defendants respectfully request that this Court grant the Motion to

Dismiss and dismiss Plaintiff’s Complaint in its entirety with prejudice.

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By: /s/ Alice F. Paylor
Alice F. Paylor
Elizabeth J. Palmer
Saxton & Stump, LLC
151 Meeting Street, Suite 350
Charleston, SC 29401
(843) 414-5080
afp@saxtonstump.com
ep@saxtonstump.com

ATTORNEYS FOR DEFENDANTS

Charleston, SC
January 27, 2023

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