SC legislative leaders fight Richland 2’s effort to require student masks

South Carolina’s two top lawmakers contend in a legal action filed in the S.C. Supreme Court that the Legislature has the authority to stop local public school boards from requiring all their students to wear masks.

The filings by State Senate President Harvey Peeler, R-Cherokee, and House Speaker Jay Lucas, R-Darlington, are a response to an urgent petition by the Richland 2 school district and a parent filed last week in the Supreme Court. The petition seeks to get the court to declare that the state law stopping school districts from requiring masks is unconstitutional.

In late June, the Legislature attached a proviso to the state budget bill that prohibits local school boards from adopting universal mask mandates in the schools in their districts. The proviso says that neither state nor local funding can be used to require all students to wear masks. Students can still wear masks voluntarily.

Another contested proviso says that school districts can only allow 5% of their students to attend classes virtually.

The school district’s main arguments, made in its petition, are that “South Carolina is in a state of public health emergency,” that masks are an effective way of stopping the high contagious COVID-19, and the district’s “number one priority is assuring the safety of their students,” according to its petition.

In their replies to the Supreme Court, Peeler and Lucas assert that the school district has no right to take the Legislature to court because the school district itself was created by state law, “and an entity created by state law may not bring a claim against its creator, the State, and in this instance, the General Assembly.”

As for the parent who joined with Richland 2 in its efforts to get the Supreme Court to allow local boards to require all students to wear masks, Peeler’s filing said that nothing in the law that the parent is complaining about “prevents her children from wearing masks in school so that they may receive the benefit ... of doing so.”

The mother may also “enroll her children in free, online schools offered in South Carolina, such as the S.C. Virtual Charter School or the S.C. Connections Academy,” Peeler’s filing said.

Lucas’s filing said, in part, “The General Assembly has the sole authority to appropriate state funds for the operation of state agencies and localities,” and added the “authority” of local school boards to act has not been “invaded.”

“School districts are limited in their powers,” Lucas’s filing said, and their rules can only be applied to matters about “scholastic standards of achievement and standards of conduct and behavior that must be met by all pupils as a condition to the right of such pupils to attend the public schools of such district.”

The two provisos in question involve the disbursing of state funds, and school boards have no say-so in that action, Lucas’s filing said.

The Supreme Court could now set a time for oral arguments. Or, it could issue an opinion from the briefs alone.

Ordinarily, it can take years for the Supreme Court to hear appeals and issue opinions. But in matters of high public interest, especially involving the interpretation of a state law, the court can take up a case directly.

In late June, when the Legislature passed the provisos stopping school districts from requiring masks, it seemed that the threat from COVID-19 was diminishing across the state and nation.

But because of a highly contagious variant called delta, COVID-19 has begun spreading wildly in South Carolina and other states that have low rates of vaccination and a social culture where many people don’t wear masks.

Hundreds of students and school staff members in the Midlands have tested positive for COVID-19 less than two weeks after returning to school, The State reported.

Approximately 470 students and 50 staff members across the Lexington 1, Lexington-Richland 5, Kershaw, Orangeburg and Clarendon 2 school districts have contracted coronavirus since the new school year kicked off last week, according to data released by each of the districts.