S Carolina court upholds mask ban; trumped by federal ruling

·4-min read
Two Camden Elementary School students in masks listen as South Carolina Gov. Henry McMaster talks about steps the school is taking to fight COVID-19, Wednesday, Sept. 15, 2021, in Camden, S.C. McMaster has adamantly and repeatedly come out against requiring masks in schools even as the average number of daily COVID-19 cases in the state has risen since early June. (AP Photo/Jeffrey Collins)

COLUMBIA, S.C. (AP) — Two days after a federal judge decided that South Carolina's ban on school mask requirements discriminates against medically fragile students, the state Supreme Court disagreed, in a ruling that won't change the week's events.

Federal law trumps state law, so the U.S. District Court ruling allowing school districts to require masks is the binding one. Within an hour, South Carolina education officials sent out a memo telling districts that Thursday’s state decision changed nothing.

The South Carolina Supreme Court said districts can require masks without violating the state rule if they can find a way to avoid spending state money enforcing the wearing of face coverings.

The court also upheld as legal a different provision in the state budget, which limits school districts to having 5% of their students learning virtually all year, reducing state funding by half for each student above that mark.

Lawyers for Richland School District 2 argued the Legislature violated state law that requires legislation to only be about one topic. But the justices in their unanimous ruling said since the rules included clauses about spending state money, it was legal.

Where the two courts disagreed was on whether the state not allowing districts to make their own mask rules discriminates and prevents some students from getting the public education they have a right to get under the law.

U.S. District Judge Mary Geiger Lewis said it wasn't a close call to side with the parents of disabled children who sued the state with the help of The American Civil Liberties Union. Her preliminary injunction, issued Tuesday, said any burden from having to wear a mask is greatly outweighed by the need to ensure that medically fragile students feel safe enough to go to school.

“It is noncontroversial that children need to go to school. And, they are entitled to any reasonable accommodation that allows them to do so. No one can reasonably argue that it is an undue burden to wear a mask to accommodate a child with disabilities,” Lewis wrote.

Gov. Henry McMaster and state Attorney General Alan Wilson appealed the temporary restraining order Thursday, asking higher court judges to restore the ban to avoid changing mask policies across the state now that students are back at school.

The South Carolina Supreme Court heard arguments in the state case on Aug. 31, a week after the federal lawsuit was filed, and took a month to issue their unsigned ruling. It says any student can choose on their own to wear a mask, because the state rule treats all students equally.

“In this case, there is no evidence that any students are receiving disparate treatment. Indeed, there cannot be any argument of disparate treatment, as the provisos apply equally to all students and all public K-12 schools,” the justices wrote.

The Richland County district was the first in the state to require masks after the federal ruling Tuesday. Several others required masks before the ruling. Some have tried to assure state money isn't spent enforcing the rule, while others have just ignored the state budget rule. And some, including the Oconee County School District, said they won't require masks not because COVID-19 cases and quarantines are declining again.

The Republican-dominated South Carolina House put the provisions into the budget in June when the state was seeing an average of about 150 new COVID-19 cases a day.

Not long after, the delta variant caused a spike in cases, with younger unvaccinated children much more susceptible to infection.

About 75,000 students, teachers and school staff have been infected with COVID-19 this school year and nearly 200,000 have had to quarantine because of close exposure, according to state health data.

The number of cases has been trending down in the past few weeks, but health officials warn with vaccination rates in the state just above 50% and no vaccine yet available for children under 12, more spikes are possible throughout the school year.

Whether to allow local districts to require masks has become a political issue. The Republican-dominated General Assembly has refused to come back in special session to reconsider its rules and the Republican governor, while urging people to talk to their doctors and get vaccinated, has repeated for months that parents should decide if their children wear masks at school.

Republican state Education Superintendent Molly Spearman, joined by state health officials, doctors, teachers and school administrators, has urged giving school districts flexibility.

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Follow Jeffrey Collins on Twitter at https://twitter.com/JSCollinsAP.

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