USC reverses course after SC’s top lawyer says college can’t require masks indoors

The University of South Carolina has backpedaled on its previous plan to require face masks inside campus buildings amid the resurgence of COVID-19 across the state.

On Tuesday, the university said it will not require masks to be worn on campus.

The move follows a letter from S.C. Attorney General Alan Wilson that interpreted a legislative proviso — which functions as a one-year law that’s attached to the state budget — to prohibit mask mandates at schools.

While Wilson noted there was some ambiguity in the proviso, he said the intent of the Legislature was to prevent USC from requiring mask usage.

“It is our understanding that Proviso 117.190, while inartfully worded, was intended to prohibit the mandatory wearing of masks,” according to the letter, which Wilson posted to Twitter.

Wilson’s “guidance letter” did not constitute an official legal opinion and could allow a mandatory mask policy for everyone, so long as it applied to both vaccinated and unvaccinated people, said Robert Kittle, a spokesman for the attorney general’s office.

“As stated in the letter, we acknowledge that the proviso is ambiguous and that it can be interpreted to allow a policy that requires everyone to wear masks, not just those who are unvaccinated. But we say in the letter that such a policy is likely not consistent with the intent of the Legislature,” Kittle said in an email.

Wilson’s statement was posted Monday night. By Tuesday, USC had reversed its decision to require masks, in order to align with the attorney general’s opinion..

“In light of this...the university will not require anyone to wear face coverings in our buildings, except when in university health care facilities and when utilizing campus public transportation, effective August 3,” USC President Harris Pastides said in a statement. “We continue to strongly encourage the use of face coverings indoors, except in private offices or residence hall rooms or while eating in campus dining facilities.”

Pastides holds both a masters degree and a PhD in epidemiology from Yale University, according to USC’s website.

“During my training in epidemiology, there was a maxim about transmissible diseases like COVID-19 that stated, ‘No one can be safe until everyone is safe,’” Pastides said in the statement, explaining his rationale for initially requiring masks. “Because vaccination cannot be required in South Carolina, I felt that face coverings would go a long way in preventing the spread of the Delta variant of COVID-19, which is highly contagious, on campus. I did not think that the law precluded this action.”

USC will still be allowed to require mandatory COVID-19 testing and encourage mask wearing and vaccinations, the attorney general’s letter said.

Not everyone agreed with Wilson’s interpretation of the law.

Wilson’s reading of the law is “clearly erroneous,” said University of South Carolina constitutional law professor Thomas Crocker.

“There is no more of a constitutional liberty at stake with a mask mandate than there is with a minimal clothing requirement or a no smoking mandate for campus buildings,” Crocker said. “As we are often told in other contexts, without safety and security there can be no liberty. So liberty is a red herring.”

As for the statute that Wilson cites, Crocker said, “It simply states that a higher education institution cannot use public funds to require that its students have received the COVID-19 vaccination in order to be present at the institution’s facilities without being required to wear a face mask.”

Crocker continued, “The plain statutory meaning is that UofSC cannot require a vaccination in order to be free from a requirement to wear a facemask. It says nothing at all about whether everyone, including those who have a vaccination, could be required to wear a facemask.”

State Sen. Dick Harpootlian, D-Richland, who has USC’s main campus in his district, fired off a letter late Tuesday afternoon, with a copy to Pastides, to Attorney General Wilson.

In a two-page letter, written on his State Senate stationery, Harpootlian said Wilson had “needlessly inserted” himself “into the business of the University” and is responsible for the harmful “public health consequences that will follow.”

“...the University’s failure to take responsible measures to contain its (COVID’s) spread will spill over into the general population, needlessly prolonging the pandemic and risking illness or death to members of the University community and my constituents.”

Harpootlian also wrote, “I trust that you have already seen fit to have yourself and your family vaccinated, such that you are not personally concerned that COVID-19 will cause you or your loved one’s serious illness or death. That is not the case with many in our State, whose ignorance about the pandemic, vaccines, and masking has only been fueled by reckless cynics.

“Your so-called legal opinion claiming state law bars the University from enacting a universal mask mandate is the performative politics, not the serious work of a lawyer representing the interest of our State.”

Wilson’s office had no immediate response Tuesday evening to Harpootlian’s letter.

Over the weekend, Pastides had announced everyone on campus will be required to wear masks inside campus buildings. Pastides’ decision came as coronavirus cases, likely driven by the emerging delta variant, have surged throughout the state.

As a result of the increasing cases, the number of COVID-19 hospitalizations have more than doubled in the last two weeks, The State reported Monday.

In recent months, a highly contagious variant of the COVID-19 virus, called Delta has been spreading across the nation. According to the Centers for Disease Control and Prevention, “To maximize protection from the Delta variant and prevent possibly spreading it to others, wear a mask indoors in public if you are in an area of substantial or high transmission.”

According to federal health officials, nearly all the people getting seriously ill and dying from COVID now are the unvaccinated.

Health officials say the best way to prevent illness from COVID is by vaccinations, but that social distancing and wearing masks in crowded areas also plays a role in reducing transmission. COVID is spread by tiny aerosol droplets in infected peoples’ breath when they talk, cough, sneeze or sing.

The debate on whether to require masks in schools has spawned numerous political fights on something that is supposed to be a health issue. In the Lexington-Richland 5 public school district, the controversial and abrupt resignation of former Superintendent Christina Melton followed heated arguments with the school board over whether students should be required to wear masks in schools.

The issue of mask mandates is being discussed at the national level. On Tuesday afternoon, at a press conference, President Biden said that prohibiting mask mandates “is bad policy” that leads to harmful consequences. Numerous companies, including major retailers and restaurant chains such as Home Depot and McDonalds are moving to require workers to wear masks in many stores, according to the Wall Street Journal.

This story was originally published August 3, 2021 at 12:20 PM.