On March 7, 2012, the South Carolina Supreme Court did something uncharacteristic of a court usually predicted to follow precedent: In an opinion authored by Justice Kaye G. Hearn, the Court overruled Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010) (holding that an equal protection violation occurs when a court is enabled to order a parent to contribute to his or her child’s college expenses merely because that parent was subject to a support order when the child turned eighteen), and returned to the reasoning of Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979) (granting family court judges the ability to require a parent to contribute financially to the educational needs of a child over the age of eighteen, including college expenses, upon presentation of certain evidence) and its progeny.
In McLeod v. Starnes, Op. No. 27100 (S.C. Sup. Ct. filed Mar. 7, 2012) (Shearouse Adv. Sh. No. 9 at 39), the Court reexamined Webb and determined that strict scrutiny was mistakenly utilized, rather than the proper rational basis test, in finding there had been an equal protection violation. Strict scrutiny generally leads to a presumption against the law or government action called into question, unlike the rational basis test, which presumes it should be upheld. Under this rational basis test, the distinction made by the government action or law must merely have some “rational” relation to a “legitimate” government interest. In McLeod, the Court recognized the State’s strong interests in the welfare of its youth and in ensuring those youth are educated to become more productive members of society.
Cognizant of the possibility that most non-divorced parents “support their children through college years,” the Court also noted that “even well-intentioned parents, when deprived of the custody of their children, sometimes react by refusing to support them as they would if the family unit had been preserved.” While the Court did not grant an “absolute right to a college education,” it did recognize that the Risinger factors attempt to provide a child whose parents, excepting the divorce, “would otherwise have paid” college expenses with the benefit of a college education. When these limited circumstances were reexamined under rational basis, no equal protection violation was found:
While it is certainly true that not all married couples send their children to college, that does not detract from the State’s interest in having college-educated citizens and attempting to alleviate the potential disadvantages placed upon children of divorced parents. Although the decision to send a child to college may be a personal one, it is not one we wish to foreclose to a child simply because his parents are divorced.
The facts in McLeod showed exactly what Risinger attempted to prevent: A non-custodial parent refusing to contribute to the college expenses of his or her child for “no defensible reason.” The parent in this case had “more than adequate means” to provide financial support and the child “truly desire[d] to attend college,” causing the Court to posit that the parent’s reasoning for refusal to contribute was merely “the shield erected by Webb”: “Had Father and Mother remained married, we believe Father undoubtedly would have contributed towards [child]’s education.” The Court went on to reaffirm the “harsh and unfortunate reality” Risinger seeks to address: “[S]ometimes the acrimony of marital litigation impacts a parent’s normal sense of obligation towards his or her children.” The factors outlined in Risinger require “evidence that: (1) the characteristics of the child indicate that he or she will benefit from college; (2) the child demonstrates the ability to do well, or at least make satisfactory grades; (3) the child cannot otherwise go to school; and (4) the parent has the financial ability to help pay for such an education.”
It is of note that the non-custodial parent in McLeod was barred from utilizing an alternate argument regarding the appropriate classification for the equal protection challenge because it was not used before the family court and thus preserved for appeal. In front of the family court, the parent argued for divorced parents versus non-divorced parents being the appropriate classification. Subsequently, the parent argued for a classification consistent with Webb: parents subject to a child support order when emancipation occurs as compared to parents not subject to such an order at that time.
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