How masks in schools became a political football in SC as COVID-19 rages again

Jones, a little-known Upstate lawmaker who in 2019 won a special election to fill the unexpired term of Rep. Mike Pitts, had been fighting mask requirements for months.

The 38-year-old businessman, who participated in anti-mask protests outside the State House last September and sponsored an unsuccessful bill that would have fined state employees who tried to enforce federal mask mandates, ultimately resorted to advancing his agenda through the budget proviso process.

Provisos are one-year laws attached to the state’s annual spending plan that lawmakers often propose to appease constituents or make political points, such as defunding Planned Parenthood. They must be connected to the spending of state dollars.

“I used that mechanism in the power of the purse in the state budget to protect our citizens and protect their liberty against what was going on with masks and vaccines,” said Jones, whose Twitter handle is @jones4liberty.

To do that, Jones used boilerplate language prohibiting school districts and public colleges and universities from using “any funds appropriated or authorized pursuant to this act to require” that students wear face masks at school facilities.

“This amendment is very specific,” he said, as he introduced his first proviso on June 9, about three hours into the day’s session. “It prohibits state funds from being used for COVID-19 passports at our higher learning facilities, any state-funded college.”

The S.C. House adopted Jones’ proposal without discussion, with a vote that fell largely along party lines.

His second budget amendment, which the Laurens lawmaker said “does the exact same thing for K-12,” elicited pushback from two of his Democratic colleagues. They warned it would tie the hands of school districts in the case of a COVID-19 outbreak and amounted to micromanaging local officials.

“If you choose to wear a mask, wear your mask, but I don’t think that we should come here today and tell school districts and colleges and universities what to do,” Rep. John King, D-York, said on the House floor. “I think they should have an opportunity to make those decisions. Because what if something serious happened and we had voted to do this, and then we have to come back to change the law? Because this will be a law for a year. This is serious; we’re talking about lives.”

Rep. Justin Bamberg, D-Bamberg, argued it didn’t make sense to take a blanket approach to mask requirements when COVID-19 had hit some communities harder than others and not all counties even had hospitals.

Local leaders should have the authority to impose mask mandates in districts where coronavirus cases are surging, he said, pointing to school outbreaks in Great Britain where the delta variant was raging at the time.

“There’s a strain of COVID in the UK right now that is decimating young people,” Bamberg said. “What happens if that comes over here and hits our young people?”

Bamberg’s concerns foreshadowed South Carolina’s current delta variant-fueled surge. But his words fell on deaf ears, at least among Republican members of the House.

Neither Jones nor any of his Republican colleagues spoke in defense of the mask mandate prohibition. They simply voted, again along party lines, to attach it to the budget.

Rep. Bart Blackwell, of Aiken County, was the lone Republican to oppose the provision.

Education leaders were not consulted

The mask stipulation in the budget caught some off guard, including the state Department of Education, which was not consulted in advance about the proposed one-year law.

“The proviso was written on the fly, about five minutes before the budget was passed,” Education spokesman Ryan Brown said. “It kind of came out of left field and was written basically on the floor.”

State schools chief Molly Spearman had already lifted the statewide school mask requirement in May — the day after McMaster issued his executive order preventing schools from requiring masks — and she did not plan to reinstate it. She had, however, intended to let local school leaders make their own calls on face mask mandates.

While state education officials do not plan to challenge the law and believe its intent is clear, Brown said he wished they had been given a chance to help craft the proviso in order to clarify a number of issues it does not address.

“There’s a lot of nuances in schools that this doesn’t really account for,” he said. “It doesn’t speak to visitors, it doesn’t speak to school buses, it doesn’t speak to areas where medical services are being performed. So we’ve had to basically read into it and try to provide guidance without fully knowing where that guidance would land in relation to how it was crafted.”

Brown said after speaking with lawmakers and the state Department of Health and Environmental Control that the agency would require masks to be worn in school areas where COVID-19 testing is performed and where students suspected of being infected are waiting to be tested.

Districts will have discretion over mask requirements for visitors and on school buses, he said.

Brown said he doesn’t think most districts would have required facial coverings this fall, if given the option.

At the end of last school year, when case counts were low, very few districts were considering mask mandates in the fall, he said. With COVID-19 cases spiking tenfold over the past month and both federal and state health officials recently recommending universal masking in schools, he estimated that now about 30% of districts would require coverings, if permitted.

“The end of last year was a much different situation than the beginning of this year,” Brown said. “I think the transmission rate and the case count and the prevalence of the delta variant has changed people’s perspectives.”

Anti-mask provisos challenged

The political volley over masking rose to new levels in the past week when the University of South Carolina announced plans to require face coverings inside campus buildings after state and federal health officials recommended that all people wear masks in indoor public settings.

The decision sparked an intense debate between those who asserted that state law prohibited USC from imposing a mask mandate and those who argued that the budget language was ambiguous and did not necessarily preclude a university or a school district from requiring face coverings.

There has been some discussion of lawmakers returning to Columbia in the weeks ahead to clean up the language in both provisos banning mask mandates, but it’s not yet clear whether that will happen or ultimately be necessary.

While the wording of the budget amendments has been criticized — even Attorney General Alan Wilson called the higher education proviso “inartfully worded” — their intent is clear, Jones asserted.

Republican lawmakers wanted to prevent schools from mandating that masks be worn in their buildings, he said.

“There’s been a difference of opinion on the way the provisos were drafted and the wording of the proviso, but the Attorney General agrees with the intent of the General Assembly,” Jones said.

Some lawmakers, however, have argued that school districts may use local dollars — as opposed to state funding — to enforce mask mandates. Others say schools may be able to use CARES Act dollars to impose mask rules.

“School districts have local funds they completely control, and to which the budget proviso does not apply,” state Rep. Leon Stavrinakis, D-Charleston, tweeted last week. “They have clear legal authority under permanent state law to regulate conduct in their schools.”

State Rep. Annie McDaniel, D-Fairfield, asked Wilson for an interpretation of the K-12 proviso and to offer guidance on whether the state can withhold funding from school districts that put in mask mandates.

“The plain meaning of the text indicates the proviso merely prohibits the use of state funding for a mask requirement, not that it prohibits such a policy from existing in a school,” McDaniel wrote in her letter to the S.C. Attorney General.

USC Law professor Derek Black said legislative intent may not apply in cases where the wording doesn’t create any ambiguity. He points to how the proviso doesn’t reference local dollars.

“A general rule of construction, you are to construe those types of limitations on funding narrowly and precisely, and if something falls out of that then it doesn’t apply to it,” Black said. “At the end of the day, when the law is clear and there is no ambiguity, you don’t start trying to infer intentions because that makes the law as written, irrelevant.”

McMaster, a staunch opponent of mask mandates who earlier this year called it the “height of ridiculosity” that schools were requiring facial coverings over the objections of parents, disagrees with that analysis.

“There’s no way for schools to have a mandate without some way using state funds. State funds permeate everything in a school,” the governor told reporters last week. “There’s no way to uncommingle funds that are in the school process.”

Columbia flouts the state

On Wednesday, Benjamin declared a state of emergency in Columbia and mandated that students, faculty, staff and visitors wear masks in public and private schools and day care facilities to curb the spread of COVID-19.

Columbia City Council on Thursday approved Benjamin’s emergency order, which McMaster, House and Senate leadership, and state education officials all say violates state law. Benjamin said the city is willing to fight any legal challenge to the order and expects it would win. He also said that throughout the pandemic, the city has “been standing in the gap” where the state hasn’t acted in regard to COVID-19.

“City leadership doesn’t mind speaking up when we feel things need to be said,” Benjamin said.

In order to get around the state budget issue, Benjamin said the city would provide masks at elementary and middle schools, and have city fire marshals enforce the measure, with violations potentially costing school administrators fines of $100. No state funding would be involved in the effort, the mayor said.

In response, Wilson, who earlier in the week opined that the University of South Carolina could not legally require its students to wear masks inside campus buildings, said he was reviewing Columbia’s school mask mandate and may take action as early as this coming week.

Senate President Harvey Peeler, R-Cherokee, and House Speaker Jay Lucas, R-Darlington, have also asked Wilson to review Columbia’s school mask ordinance and, if necessary, take appropriate action on behalf of the state.

“The actions taken by Columbia City Council at the request and direction of Mayor Benjamin are in clear and deliberate violation of the plain meaning of the proviso,” they wrote Friday in a letter to Wilson.

Ultimately, both Columbia’s school mask mandate and Jones’ provisos, which Benjamin has noted do not explicitly limit the city’s ability to impose mask requirements in schools, may end up being decided by the courts.

A USC astrophysics professor whose wife is at increased risk of severe COVID-19 complications filed a lawsuit Thursday after the university backpedaled on a proposed mask requirement in campus buildings. The suit, brought by state Sen. Dick Harpootlian, D-Richland, seeks clarification on the proviso prohibiting mask mandates on campus and asks the state Supreme Court to weigh in on the matter.

“The Attorney General is plainly wrong and has created a controversy where none should exist,” the court filing states. “Regrettably, the University acceded to the Attorney General’s demand and revoked its universal mask mandate while acknowledging its importance and pleading for voluntary compliance.”

Wilson responded to the lawsuit in a statement Friday, calling the ban on mask mandates a “political question for the state legislature” and not one the state Supreme Court should address.

“We reiterate what we wrote to Sen. Harpootlian,” said Wilson, who along with USC is named as a respondent in the suit. “If the legislature’s intent was what he says it was, he’ll have no trouble getting his fellow lawmakers to pass something clarifying that.”

The Supreme Court now must decide whether to accept the petition. It could decide the case on written briefs alone or hold a hearing, and any subsequent high court ruling would have the force of law.