Here’s how SC could change law banning school mask mandates. But will lawmakers do it?
Calls are growing louder for South Carolina lawmakers to change or eliminate a one-year law that aims to prevent mask mandates in K-12 schools, raising the question of what it would take to actually change the measure that was inserted into the state budget when COVID-19 cases appeared to be dropping.
Cases of COVID-19 have spiked across the state as the highly transmissible delta variant spreads — a rising concern because children younger than age 12 can’t get vaccinated.
This year, state lawmakers included two one-year measures in the budget addressing face masks in schools, which are recognized as a way to help stem the spread of COVID-19. One measure prevents state money from being used to enforce a mask mandate in elementary, middle and high schools, and one sought to prevent colleges and universities from using vaccination status to determine whether people have to wear masks on campus.
The state Supreme Court recently ruled on the budget measure aimed at preventing colleges and universities from using proof of vaccination status on whether people on campus would have to wear a mask. Colleges, the court said, have the right to require all students to wear masks inside.
Clemson University, the University of South Carolina and other colleges have now instituted mask mandates on their campuses.
As students returned to school over the past two weeks, a bipartisan set of lawmakers, as well as outside groups, have called for a special legislative session to reconsider the controversial budget measures. On Friday, the state’s Department of Health and Environmental Control board ordered its director and chairman to contact lawmakers and urge them to revise the budget measures.
If lawmakers were to readdress the mask provisions in the budget, one option includes a special session. That would require House Speaker Jay Lucas, R-Darlington and Senate President Harvey Peeler, R-Cherokee, to call back their respective chambers.
So far neither have done so.
Can two-thirds agree?
A special session, though unlikely, would be a heavy lift for the Republican-controlled Legislature.
If lawmakers really want to make a change, they would need to reopen what’s called the sine die resolution, legislation that dictates what lawmakers can return to session to work on after the formal legislative session ends in May.
But to do that, they’d need a two-thirds vote in the 124-member House and the 46-member Senate to change the resolution in order to address the budget. The measure, called a proviso, aimed at banning mask mandates in schools passed 71-37 in the House, mostly along party lines.
House Majority Leader Gary Simrill, R-York, said Tuesday that lawmakers have yet to reach a consensus on whether to hold a special session to address the mask measures in the budget.
Lawmakers already are planning to return in the fall to discuss how to spend federal COVID-19 relief money and deal with redistricting, but a date has yet to be announced. Lawmakers could opt to try and attach a measure loosening the mask provisions to a COVID money spending bill, but no legislative leader has stated that’s the route they plan to take and it’s unclear if they could do that.
Besides the logistical hurdles of reconvening the General Assembly, there’s also the political angle of the issue.
For Republicans, in particular, a vote allowing mask mandates could put them in danger of drawing a primary challenger.
All House members are up for reelection in 2022. So is Gov. Henry McMaster, who opposes a mandate and has not said whether he’d veto legislation overturning or modifying it.
“For the Republican base, masks have become an issue related to personal freedom (and) personal choice,” said Gibbs Knotts, a political science professor at the College of Charleston. “It’s one of those classic things when a politician decides, ‘Do I want to sail through the primary, or do I want to sail through the general election?’ It certainly makes them more likely to be primaried.”
What will the court say?
But a court may address the K-12 proviso before lawmakers ever get to it.
This week, Republican Attorney General Alan Wilson sued the City of Columbia over its mask mandate for elementary and middle schools. This also comes as Richland County is requiring students and staff in elementary and middle schools to wear masks, and Charleston County schools have instituted their own a mask mandate.
Wilson aims to have the result of the lawsuit settle all questions on the proviso. He filed his suit directly with the state Supreme Court.
“Besides the City of Columbia, the lawsuit mentions and would also apply to all cities, towns, counties, and school boards that have passed or are seeking to pass mask mandates,” Wilson’s office said in a release.
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This story was originally published August 20, 2021 at 4:34 PM.
