Can schools require masks in classrooms? SC Supreme Court hears first legal arguments

Arguments began Tuesday at the state’s highest court over the legality of a one-year law banning mask mandates in schools.

Attorneys for Richland 2 and an Orangeburg parent argued a one-year state law banning mask mandates — a type of law called a proviso that’s attached to the state budget — was so vague it was unconstitutional. Attorney Carl Solomon argued it was illegal for the General Assembly to pass this sort of policy restriction through a proviso, but could do so through a general law.

The proviso says state tax dollars cannot be spent to enforce a mask mandate in schools.

Skyler Hutto, who is representing the Orangeburg parent, argued the proviso makes schools less safe and interferes with the school’s ability to provide the constitutionally-required “minimally adequate” education.

“There may not be a way to make facilities 100% safe, but there is a way to make them safer and that is exactly what is not accomplished by a ban on mask mandates,” Hutto said. “The General Assembly has not only prevented some of the measures schools would want to take, but they have made schools less safe through that prevention.”

Richland 2 and Malika Stokes, an Orangeburg County parent with three children, filed the suit against House Speaker Jay Lucas, R-Darlington; state Senate President Harvey Peeler, R-Cherokee; and S.C. Superintendent of Education Molly Spearman in late August.

Susan McWilliams, an attorney with Nexsen Pruett who represented Lucas, argued school funding is so entangled with money from state, local and federal dollars that districts could not pass a policy without indirectly using state funds — even if the district used money sourced only from local or federal funds.

Kenneth Moffitt, who represented Peeler, argued provisos have the same legal standing as general laws.

The proviso doesn’t lay out specific penalties for requiring masks, which led Justice John Few to say the proviso was more about creating a policy than controlling specific dollars.

“The question is whether the state has the power, using a budget proviso, to implement a policy that’s not about the money,” Few said.

Though Spearman was named in the suit, she has said publicly — even before the suit was filed — that she disagrees with the one-year law and believes school boards should decide whether to require masks in class. But a directive from the S.C. Department of Education, which Spearman runs, published a policy advisory to schools that interpreted the proviso and concluded state funds could be lost if they disobeyed the mask mandate.

While the issue of mask mandates in schools has led to political fights throughout the United States, S.C. Supreme Court Chief Justice Donald Beatty promised the decision would be based on the rule of law, not politics nor medicine.

“We are not interested in the political arguments (or) political solutions. We are not here to make any medical statements or pronouncements,” Beatty said. “We are here to make a decision on the rule of law.”

The Tuesday hearing followed a separate hearing earlier Tuesday before the Supreme Court regarding the legality of the City of Columbia’s emergency ordinance requiring masks in elementary and middle schools. Other local governments have also resisted the one-year law, which was passed in June when the number of new daily COVID-19 cases often dipped to fewer than 100. Richland District 1, for example, openly defied the one-year law and is requiring masks in classrooms. Richland 1 currently has fewer cases than other, nearby districts of a similar size.

Since Richland 2 and Stokes filed their suit on Aug. 22, COVID-19 case numbers have continued to rise in South Carolina. On Aug. 22, the Department of Health and Environmental Control recorded 3,125 new cases. On Aug. 28, the most recent date available, DHEC recorded 3,775 new cases.

Richland 2 and Stokes are being represented pro bono by Carl Solomon with the Solomon Law Group and Skyler Hutto with Williams & Williams. Hutto is the son of Orangeburg Democratic Sen. Brad Hutto.

This story was originally published August 31, 2021 at 1:22 PM.