SC Supreme Court says USC, colleges are allowed to require masks on campus

The South Carolina Supreme Court ruled Tuesday that the University of South Carolina has the right to require all students to wear masks inside to prevent the spread of the highly contagious COVID-19 virus.

In a unanimous six-page opinion, the high court said a state budget measure — known as a proviso — that passed in the General Assembly this year “does not prohibit a universal mask mandate” at the public university. But the court added that the university cannot single out unvaccinated students and require only them, not vaccinated students, to wear a mask.

The Supreme Court’s decision came two days before the university started its fall semester Thursday, when thousands of students returned to campus.

Hours after the decision, university President Harris Pastides moved quickly to reinstate a mask mandate in university building and classrooms. Other South Carolina colleges joined, including Clemson and South Carolina State University and College of Charleston.

Pastides has a doctorate in the study of infectious diseases.

“Today’s South Carolina Supreme Court ruling clears the way for the university to require face coverings on our campus,” Pastides said Tuesday. “On July 23, we were the first institution in the state to mandate face coverings. I will require the use of face coverings in our buildings, effective immediately, as an effective strategy in slowing the spread of the COVID-19 virus.”

Masks are a proven way to prevent or reduce transmission of COVID-19 in indoor settings, according to the U.S. Centers for Disease Control and Prevention, which recommends masks be worn in indoor areas and especially in crowds.

The nation, including South Carolina, is currently experiencing another surge in COVID-19 cases, a new wave heightened by the delta variant. Only 45% of South Carolinians are completely vaccinated, and 54% have received at least one shot, according to health data.

“We declare the terms of Proviso 117.190 (budget measure) clearly and unambiguously prohibit a state-supported institution of higher education from discriminating against unvaccinated students, faculty, and staff by requiring them to wear masks,” the court wrote. “The proviso does not prohibit a universal mask mandate.”

Decision becomes political

After Pastides ordered a university mask mandate in July for all students, faculty and staff, Attorney General Alan Wilson wrote him a letter, arguing the budget measure passed by the General Assembly prohibited a universal mask mandate at state universities.

With a mask rule in place, Pastides backed down and rescinded the requirement.

That reversal then prompted USC astrophysics Professor Richard Creswick to file a lawsuit with the Supreme Court seeking clarification on the proviso that Wilson claimed stopped the university from requiring everyone on campus to wear masks indoors.

Creswick’s wife has a health condition that puts her at increased risk of severe COVID-19 complications, according to his filing.

Normally, the Supreme Court only takes lawsuits after years of appeals, but it can take up matters on an emergency basis. It did so with Creswick’s filing.

“This opinion proves President Pastides was correct. This whole matter was the result of an intimidating political letter written by the attorney general to pressure the university to back down from a mask mandate — whose purpose was to save lives,” said state Sen. Dick Harpootlian, D-Richland, who represented the professor.

Harpootlian, whose district includes USC, and Senate Majority Leader Shane Massey, R-Edgefield, have said the legislative intent of the proviso in question was not to block mask mandates.

In Creswick’s lawsuit, Harpootlian included as an exhibit a fundraising letter Wilson emailed to donors after Pastides backed down.

“The fight over vaccines and masks has never been about science or health,” Wilson’s email said, in part. “It’s about expanding the government’s control over our daily lives. I won’t stand for it.”

The donor email continued to say that the “unelected bureaucrats at the CDC and liberal politicians at every level of government are determined to use the COVID crisis as an excuse to dramatically expand their interference in, and control over, every decision YOU make. They won’t get away with it.”

Wilson then asked people to send him various amounts of money up to $100.

“That email shows that within 24 hours of telling Pastides to reverse his mask mandate, Wilson was raising money off what he told the university,” Harpootlian said. “He was monetizing his opinion, he was using it to raise money off of people who were deluded into thinking they have some sort of constitutional right not to wear masks during the greatest public health emergency in a 100 years.”

In his response to the court, Wilson acknowledged the proviso was “inartfully drafted,” but he believed the Legislature’s intent was to deny public universities the authority to issue mask mandates.

“While we disagree with the Supreme Court’s ruling, we certainly understand its rationale and anticipated this was a reading the Court could give,” Wilson said in a statement. “In fact, the Court quoted our letter to President Pastides that stated the proviso could be read another way. While the proviso was not clear, we think the Legislature’s intent was, so now it’s up to the University of South Carolina to address this matter in light of the General Assembly’s position.”

Wilson’s office had no comment about Harpootlian’s claim that he caused Pastides to reverse the mask mandate in order to make political points and to raise money.

Legality of mask mandates debated

The opinion comes amid escalating clashes between state and local officials about the legality of mask mandates in higher education.

The proviso was passed as part of the state budget that took effect July 1. But controversy around USC’s masking policy didn’t overflow until Wilson sent Pastides a letter urging him to nix a planned policy that would have required masks be worn indoors on campus. Pastides’ policy exempted dorm rooms and private offices.

Pastides nixed the policy, instead implementing voluntary incentives, such as the chance to win free tuition for students or $1,000 supply grants to faculty who get vaccinated.

But the high court said in its opinion Tuesday that if the General Assembly wanted to prevent college administrations from making everyone wear masks, it could have easily written such a law in clear language.

“The Attorney General’s contention that construing Proviso 117.190 ... somehow evidences the legislative intent for Proviso 117.190 to prohibit universal mask mandates at state-funded colleges and universities is specious,” the high court said.

This story was originally published August 17, 2021 at 3:58 PM.