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SC law on mask mandates in schools faces federal, state, local challenges

Published: Aug. 20, 2021 at 9:24 PM EDT|Updated: Aug. 20, 2021 at 9:25 PM EDT
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COLUMBIA, S.C. (WIS) - In a letter to Governor McMaster, the U.S. Secretary of Education said schools are allowed to use federal funds from the COVID relief bills to mandate masks.

McMaster responded to this and the Biden administration’s determination to allow mask requirements to be put in place in schools Friday by repeating masking should be up to a child’s parents.

“To suggest that bureaucrats in Washington should tell parents that they must force their children to wear a mask in school against their wishes is a drastic error. I think it’s wrong,” McMaster said. “I think we are on the right course now, I think we need to be very careful. We have information now that we didn’t have last year. But we know this- the best answer is [the] vaccine.”

The back and forth with the Biden administration adds another layer to the confusion many South Carolina families are feeling regarding what mask rules schools are allowed to impose.

On Friday, Richland County School District Two asked the state Supreme Court to pause the temporary law in the state budget saying no state funds can be used to mandate masks or enforce a mask mandate.

The temporary law, or proviso, states, “No school district, or any of its schools, may use any funds appropriated or authorized pursuant to this act to require that its students and/or employees wear a facemask at any of its education facilities.”

And on Thursday, the state Attorney General filed a complaint against the City of Columbia’s emergency ordinance directing schools to require masks.

PREVIOUS STORY | AG files lawsuit against Columbia over school mask mandate

University of South Carolina Law Professor Derek Black, who studies the intersection of constitutional law and public education, emphasized the temporary law at the center of all these debates and lawsuits can only direct the use of state funds.

“The legislature hands out all this money and says ‘here’s what you can do with it and here’s what you can’t do.’ They said you can’t take this cash I’ve given you and spend it on mask enforcements,” Black said.

In the complaint, the AG’s office said the proviso is constitutional and means all mask mandates aren’t allowed in South Carolina schools.

“Although the city provisos state that the city will provide masks to the schools, the responsibility for ensuring compliance will fall on the schools, themselves, and will require the use of public funds via school personnel and other school resources in violation of Proviso 1.108,” wrote the AG in the complaint.

The City of Columbia says since they are not using state money to pay for the masks or enforce the mandate, they are within their right to require face coverings.

Columbia Mayor Steve Benjamin said the city has a “legal and ethical obligation to protect the health, safety, and well-being of our citizens.”

Black said ultimately the written law itself will determine the state Supreme Court rules.

“The Supreme Court was crystal clear on this the other day in the University case. What matters is the words on the statue. We don’t get to make up what the rules are based on what one legislature thought or another legislature thought or what they changed their mind about. If that’s what we move to in society we might as well not have laws. We will just make it up as we go along,” he said.

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