SC Attorney General says Columbia school mask ordinance is against the law
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Columbia’s COVID-19 Emergency Order
Mayor Steve Benjamin declared a state of emergency for Columbia that includes mask requirements for schools within the city limits. What will that mean for your child this year? Here’s the latest.
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Republican South Carolina Attorney General Alan Wilson has written a letter to Columbia City Council saying he believes the city’s recent emergency ordinance requiring masks in elementary and middle schools is against state law.
Columbia City Council last week passed a measure that requires students and faculty at 43 elementary and middle schools and day cares in the city to wear masks. That came despite a one-year law written into the state budget by legislators that prevents schools from spending state funds on mask mandates.
“It is the opinion of my office that these ordinances are in conflict with state law and should either be rescinded or amended. Otherwise, the city will be subject to appropriate legal actions to enjoin their enforcement,” Wilson wrote. “While we appreciate the efforts of city leaders around the state to protect their populace from the spread of the COVID-19 virus and variants of it, these efforts must conform to state law.”
Wilson said in his Tuesday letter that he is giving Columbia until the end of the day on Friday to let his office know “what efforts city council will undertake to bring the city’s facemask ordinances for schools into compliance with state law.”
Meanwhile, it looks like city leaders are willing to take the matter to court.
Columbia Mayor Steve Benjamin said in a Tuesday afternoon statement he “fundamentally disagrees” with the attorney general’s opinion.
“Our city government has a constitutional authority and responsibility to preserve the lives, safety, health and welfare of our city and citizens,” Benjamin said. “This, at times, requires we must act swiftly and decisively on an emergency basis, and we are assured we are not in violation of state law, and are prepared to defend our decision.”
At-large City Councilman Howard Duvall said he believes the majority of city council is willing to take the matter to litigation if need be.
“This is a public safety issue,” Duvall told The State. “I think we have the legal authority on our side to do what is necessary to protect the citizens, in this case children age 2 to 14. The governor has taken, I believe, the wrong position to protect the lives of these young children.”
Republican Gov. Henry McMaster said at an Aug. 9 press conference that he didn’t think the city’s mask ordinance for schools would hold up in court.
“That (Columbia) mandate is, I believe, contrary to state law,” said McMaster, a former U.S. attorney and the state’s former attorney general. “The state law is crystal clear that state funds are not to be used to enforce a mask mandate. The very people who were listed (in the city’s ordinance) as those responsible to enforce the mandate are, of course, paid in whole or in part with state funds.”
McMaster has said multiple times recently that it should be parents’ choice whether or not their children wear a mask at school.
On Aug. 5 the Columbia City Council voted 5-1 in a special session to approve Benjamin’s emergency declaration requiring masks in some schools. Violators face a potential $100 city fine.
Councilman Daniel Rickenmann, a candidate to succeed Benjamin in November’s election, was the lone vote against the measure. He said the city should do everything it can to encourage people to wear masks, get vaccinated and take other precautions against the spread of COVID-19, but he believes a mandate will violate state law.
Benjamin pushed back against that assertion, noting the law doesn’t limit the city’s actions, and argued the state constitution empowers cities to take emergency measures such as the mask ordinance.
The city’s mask ordinance came as COVID cases have risen sharply across South Carolina. The state Department of Health and Environmental Control reported another 2,200 new cases on Tuesday, and 11 additional deaths. There are more than 1,000 people hospitalized with COVID-19 in South Carolina.
Duvall said the city passed the mask ordinance for elementary and middle schools because COVID vaccines are not yet available to those under 12 years old.
“They don’t have a (vaccine) option,” Duvall said of the children. “The only safety for them is to wear a mask and have as much separation between them and other students as possible. ... We are trying to protect the kids, because they have no choice but to go to school, and the only protection they have (against COVID) is a mask.”
The city’s school mask law also has been questioned by Republican state legislative leaders. On Aug. 6, Senate President Harvey Peeler, R-Cherokee, and House Speaker Jay Lucas issued a joint letter decrying the capital city’s measure.
The legislative leaders said they think the one-year mask law in the state budget is “clear and unambiguous” and that it prohibits masks in schools in South Carolina no matter where they may be located.
“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,” Peeler and Lucas wrote.
In his Tuesday letter to city council, Wilson noted he had received a letter from Peeler and Lucas asking him to review Columbia’s school mask ordinance.
The Republican attorney general said that the city can encourage the wearing of face masks, and that it can enforce the wearing of masks inside of city of Columbia municipal buildings and “other facilities.” But he said enforcing them inside of school buildings would be in violation of the one-year school mask law written into the state budget.
That one-year law reads as follows: “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. This prohibition extends to the announcement or enforcement of any such policy.”
Wilson said his reading of the proviso is that cities or counties cannot mandate masks in schools.
“While the proviso does not mention municipalities, it is clear from both a plain reading of its language and from the intent expressed by legislative leaders that the General Assembly does not believe that school students or employees should be subject to facemask mandates,” Wilson wrote to council.
The first day of school in Richland District One, which is mostly, but not entirely, an in-city district, is Aug. 18.
Benjamin noted the state is in the midst of a “steep rise” in COVID infections.
“We ... ask our state leaders to step back from viewing this matter as one of conflict between the city and state, and rather stand with us to help find solutions that will best protect our children and teachers, and keep them safe and healthy when school resumes next week,” Benjamin said.
To read Wilson’s full letter to Columbia City Council, click here.
This story was originally published August 10, 2021 at 4:31 PM.
