The S.C. Department of Education released guidance saying that school districts now have the "discretionary authority" to require masks in school.
The guidance was sent out shortly after a Sept. 27 court ruling in which U.S. District Judge Mary Geiger Lewis issued a restraining order and injunction that put a temporary end to a provision in the state's 2021-22 budget that prohibited K-12 schools from using public funds to enforce mask mandates.
"The immediate effect of the Court’s order is that both the state and local school districts are prohibited from enforcing Proviso 1.108 and school districts now have the discretionary authority to require masks," S.C. Education Superintendent Molly Spearman wrote in a letter to districts.
The decision comes after the American Civil Liberties Union filed a lawsuit on behalf of parents of students with disabilities who claimed the provision violated the Americans with Disabilities Act. They pointed out that many students with disabilities are more susceptible to severe illness from COVID-19 and argued that school districts were unable to provide a safe educational environment for these children.
The lawsuit named Gov. Henry McMaster, S.C. Attorney General Alan Wilson, Spearman and a number of school districts in the state.
Camden Elementary School students listen to Gov. Henry McMaster on Sept. 15, 2021, in Camden. A federal judge on Sept. 28, 2021, blocked South Carolina from enforcing a rule that barred school districts from requiring masks for students. Parents of disabled children, aided by the American Civil Liberties Union, sued the state, saying the ban discriminated against medically vulnerable students by keeping them out of public schools as the COVID-19 pandemic continues. File/Jeffrey Collins/AP
In a video McMaster posted to his Twitter account in the afternoon on Sept. 29, he said that he 100 percent disagreed with the district judge's opinion.
"I believe parents should have a final word in whether their children should be required to wear a mask in school. We will take it to the U.S. Supreme Court if necessary," McMaster said.
McMaster and Wilson filed an appeal to the judge's decision on shortly after the governor's video was posted.
The decision does not mean the school districts are now required to enforce mask mandates, but it does give them the option. Charleston County, Colleton County, Marlboro County, Lexington 2, Richland One, Chester County and York County school districts all had mask requirements prior to the decision. On the afternoon of Sept. 29, Richland School District Two officials said the district will start requiring masks on Sept. 30.
Several districts contacted by The Post and Courier said they are still debating what to do about the judge's ruling and recently released guidance.
Spearman said districts should work with their lawyers to determine how they should make reasonable accommodations for students with disabilities. Representatives from Horry County School District, Greenville County School District, Dorchester School District 2, and Charleston County schools are meeting with attorneys to establish next steps in response to the ruling.
So far, a couple of districts have remained firm in their decision to make masks optional. Lexington District 1 and Oconee County School District both said Sept. 29 that students would not be required to wear masks.
People protest on Sept. 27, 2021, against the Charleston County School Board's decision that implemented the enforceable mask mandate. Brad Nettles/Staff
Lexington 1 officials interpret the decision to only apply to students with disabilities. The district will provide accommodation for those students if they provide a doctors note showing their need, said Superintendent Greg Little.
Claire Raj, a law professor at the University of South Carolina, said that she did not believe all the districts will immediately issue mask mandates.
"Schools are going to take a minute and take the pulse of what's going on in their schools to see whether this accommodation is necessary," Raj said.
The state's largest school district, Greenville County, is holding a closed-door meeting at 9 a.m. Sept. 30 so that board members can receive legal advice in light of the ruling.
"Our general counsel will discuss the temporary restraining order with our elected officials and go over the options, explain what it all means, what is likely to happen next," district spokesman Tim Waller said.
The parents involved in the lawsuits are eager to get their students back in school, said ACLU lawyer Allen Chaney. Many of the students involved in the lawsuit are learning virtually after receiving advice from doctors that being in school with unmasked students is unsafe.
"They get to go back to their classrooms, they get to see their friends again, they get to learn from their teachers instead of from their parents, and get access to services they have historically gotten in a school building that aren't available at home," he said.
State Superintendent of Education Molly Spearman speaks during a press conference at the S.C. Medical Association on Aug. 17, 2021, in Columbia. File/Sean Rayford/Special to The Post and Courier
In her opinion, Lewis acknowledged McMaster's argument that it should be a parent's right to choose whether their student wears a mask.
"It is also generally true that parents are the ones who know their children best, what is best for their health, and their ability to learn," Lewis wrote. "But, those same truths apply equally to all parents including the parents of children with disabilities, such as the minor plaintiffs here."
School officials in Richland One and Charleston County, where masks have been required for weeks despite the budget rule, expressed appreciation for the decision.
"This ruling is a win in our overall efforts to protect our students and staff during this pandemic," Richland One spokeswoman Karen York said.
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State officials also went to social media to share thoughts on the decision. Rep. Stewart Jones, R-Laurens, posted on his Facebook page that school districts that implement mask mandates should expect "massive budget cuts" as soon as the General Assembly reconvenes. Jones was the author of the budget proviso that prohibited districts from using funds to enforce mask requirements.
"Don't act surprised. The state budget is about to shrink big time," he wrote.
Parents and their lawyers are confident that Lewis' decision will stand in the court of appeals. Chaney said the parents hope that districts respond to the decision with universal mask requirements so their students can return to the classroom.
