PER CURIAM:
This is a class action in which Plaintiffs, by their amended complaint, and the United States, Plaintiff-Intervenor, by its complaint in intervention, seek to enjoin the implementation of Act No. 297 (1963) of the South Carolina General Assembly.fn1 After adoption of the Act the State Board of Education promulgated rules and regulations for implementation of the Act pursuant to Section 7 thereof. The Act provides for the payment of scholarship grants to qualified school children in the State who desire to attend private schools in the State.
SOUTH CAROLINA CODE OF 1962 VOL. 17, PAGE 71 (CUM.SUPP. 1966) STATE SCHOLARSHIP GRANTS. Promulgated under authority of § 21-297.5, S.C. Code 1962. (Filed in the office of the Secretary of State August 29, 1963.) I. Eligibility for State Scholarship Grants
When state funds have been made available, scholarships may be granted to any person between the ages of six (sixth birthday on or before November 1) and twenty whose domicile is with his or her parent or guardian within a school district of the State, where the legal trustees choose to accept the Grant in Aid plan and provide the district's pro rata of the cost as provided by the Act; and further who is qualified and entitled to attend a public school in the district.
II. Conditions for approval of Scholarship Grants
Scholarship grants may be approved for use only in non-sectarian private schools between the grades of one and twelve inclusive, located within the State of South Carolina and which meet the minimum requirements prescribed by the State Board of Education.
III. Amount of Scholarship Grants
The amount of each scholarship grant shall be an amount equal to the per pupil cost to the State of public education, as certified by the Governor, provided that the local school district in which the pupil resides shall make available a grant of local funds to such pupil in amount equal to the per pupil cost to the school district, exclusive of all state funds, and further provided that the total annual scholarship grant provided for each child shall not exceed the actual cost of tuition at the private school attended by the pupil.
IV. Procedure
The State Department of Education is designated by the State Board of Education as the legal agent for the administration of the State Scholarship Grant program. Applications for scholarship grants shall be made to the board of trustees of the school district in which the pupil resides with his or her parent or guardian on official application forms secured from the board of trustees. Such application, when processed and approved by the board of trustees, showing the amount of district funds reserved for payment of the district's portion of the Grant, shall be forwarded to the State Department of Education. The State Department of Education shall then process the application, listing the pro rata of state funds per pupil, and shall notify the district board of trustees of the amount of state funds for which the pupil is eligible. Any or all of the scholarship grant for any particular pupil sent to the board of trustees not paid to the parent or guardian must be returned to the State Department of Education.
V. Reimbursement to District School Boards
The State Department of Education is hereby authorized to reimburse the district board for the State's share of such scholarship grant as provided by law. No payment shall be made by the district board to a parent or guardian until a report has been received from the school in which the pupil is in attendance. The report shall show the length of time in days actually taught and the number of days in which the pupil was in attendance. Full reimbursement shall not be made for any pupil who is not in attendance a minimum of 75 days each semester or 150 days each school session except where excessive absence has been caused by illness properly certified by a physician. The scholarship grants for pupils who transfer from one school to another will be pro rated.
VI. Minimum Requirements for Private Schools
a. A private elementary school will not be approved unless the school employs qualified teachers, maintains a proper pupil-teacher ratio, uses the course of study provided by the State Board of Education through its adoption of textbooks, employs the other necessary staff personnel, and provides adequate library services.
b. A private high school will not be approved unless it meets the minimum standards set up by the State Board of Education for the approval of a private secondary school, such as:
1. Employ a sufficient number of qualified teachers to sustain a curriculum that will include as a minimum the nine basic courses required by the State Board of Education plus electives that will enable a student to earn at least seven additional units.
2. Operate the school not less than five hours a day for 180 days per session with periods of not less than 45 minutes each for regular class periods.
3. Provide sufficient library books and services to supplement and enrich the total school program.
4. Provide adequate guidance services.
VII. Execution of the Certification by the Board of Trustees
The board of trustees of any school district which decides to enter into the Scholarship Grant in Aid program may designate, through resolution of the board recorded in the minutes of the board, the chairman or secretary of the board to execute the application blanks for the board; and further a copy of such resolutions must be filed with the State Department of Education.
On May 9 and 12, 1965, this Court issued temporary restraining orders enjoining the making of payments under the Act until the case could be heard on its merits.
Act 297 is unconstitutional. A review of the record, including the historical background of the Act, clearly reveals that the purpose, motive and effect of the Act is to unconstitutionally circumvent the requirement first enunciated in Brown v. Board of Education of Topeka, Shawnee County, Kan., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), that the State of South Carolina not discriminate on the basis of race or color in its public educational system. See Lee v. Macon County Board of Education, 267 F. Supp. 458 (M.D.Ala. 1967); Poindexter v. Louisiana Financial Assistance Commission et al., 275 F. Supp. 833 (E.D.La. 1967), affirmed 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968).
It is therefore ordered that the defendants, their members, officers, agents, servants, employees and successors in office and all those who are acting or may act in concert or participation with them, are hereby permanently restrained, enjoined and prohibited from enforcing or seeking to enforce by any means the provisions of Act 297 of the 1963 Session of the South Carolina Legislature.