Voting discrepancy surfaces over Richland 2’s SC Supreme Court mandatory mask lawsuit

Three Richland 2 school board members say they were unaware the district was going to file a lawsuit with the S.C. Supreme Court over requiring masks in schools.

That’s because the Richland 2 school board never publicly voted on filing the suit. Rather, the school board’s only vote on the topic came on Aug. 16, when board members agreed to seek legal advice. Board leadership said it was clear during closed-door talks among nearly all board members that Richland 2 would be pursuing a suit.

In the past, the school board has directly voted in public on whether to file lawsuits, including in February when the district considered suing the vaping company JUUL.

S.C. Press Association attorney Jay Bender said the board would likely have had to vote on whether to initiate the lawsuit “otherwise, where was the decision made?” Bender said.

Board members Lindsay Agostini, Monica Scott and Lashonda McFadden said they were unclear about the ramifications of the vote when it was cast on Aug. 16. They are the same three school board members who walked out of a meeting Tuesday over a dispute about Superintendent Baron Davis’ proposed contract.

“There were three people who had no idea was was going on,” Agostini told The State on Thursday about the vote.

Concern about the August vote did not surface until after this week’s meeting, more than three weeks after the suit was filed on Aug. 20. The board also met on Aug. 24.

Richland 2 filed the widely publicized lawsuit directly with the S.C. Supreme Court in an attempt to overturn a one-year law banning K-12 mask mandates. The lawsuit has implications for districts throughout the state. If the S.C. Supreme Court strikes down the one-year law, it would pave the way for public, K-12 school districts to require masks in classrooms.

The Supreme Court heard arguments on the suit on Aug. 31. It has not issued an opinion.

During the public portion of the Aug. 16 meeting, the board voted 6-1 in favor of Vice Chair James Manning’s motion to authorize “the district to engage legal counsel to provide the best option and legal strategy to address” the one-year law banning mask mandates. The motion did not specifically mention a lawsuit.

All three board officers said it was clear in executive session that the vote to “engage legal counsel” would result in a lawsuit seeking to overturn the one-year law.

An executive session is a closed-door meeting where members of a public body are allowed to discussa limited number of specific topics, such as receiving legal action. Under South Carolina law, school boards and other government councils cannot cast votes in executive sessions that commit the district or government to a course of action.

“It was crystal clear what steps would be taken,” board secretary Amelia McKie told The State Thursday regarding the lawsuit vote. “Everyone had an opportunity to ask questions and everyone did.”

Manning said that while he knew the district would file the case in the supreme court, he was unsure whether the district would seek an injunction locally or at the state level. However, it was “very clear” from executive session discussions that Richland 2 would be filing a lawsuit over the one-year law banning mask mandates.

Richland 2 spokeswoman Libby Roof said the Aug. 16 vote paved the way for the lawsuit.

“This vote by the board was taken following an executive session during which the board received legal advice regarding the best option and legal strategy to address (the one-year mask law). The discussion included a clear description of what actions would be taken by district administrators if the board voted to give district administrators the authority to engage legal counsel,” Roof said in a statement.

“The approved motion provided the authority for district leaders to...seek legal relief from (the one-year mask law) in order to protect our students and employees,” Roof said.

Agostini, Scott and McFadden said the vote was not clear to them.

Agostini, who called into the meeting, missed the executive session because she was driving in a car with her daughter, she said. When the board returned to public session, she asked for more information about what specifically the attorneys were being hired to do, according to a video of the meeting reviewed by The State.

“We can’t discuss that. That was discussed in executive session,” Holmes said during the Aug. 16 meeting. “But we will be glad to inform you later what that discussion was.”

Agostini responded: “So you’re not going to let the public know what their intent is with hiring lawyers?”

Holmes said she would fill Agostini in later.

“I had no understanding of what was going to happen,” Agostini told The State on Thursday.

Scott told The State on Wednesday she was “misinformed” about what specifically she was voting on.

McFadden said she didn’t know the district was going to file a lawsuit until it had already happened.

“When we had that meeting, we were not informed we were going to go forward with it,” McFaden said of the lawsuit. “A few days later I get a call from the chair saying we’ve filed. That’s in direct opposition to two board members who opposed it in executive session.”

It’s unclear whether the board’s dispute over the vote could threaten the lawsuit. While S.C. Press Association attorney Taylor Smith said the discrepancy is unlikely to compromise the district’s lawsuit, Bender said attorneys defending the lawsuit could use the confusion as legal ammunition.

“If I were on the other side, I would presumably argue there was no legitimate vote” and attempt to have the lawsuit dismissed, Bender said.

This story was originally published September 17, 2021 at 1:30 PM.