Mask mandate legalities for SC public schools

Writing this article was challenging for several reasons, including the many recent, continuous and ongoing changes to city and county laws regarding mask mandates. Not to mention, the federal government’s recent proclamations on this topic. Therefore, this article will briefly summarize and be limited to some of the legal issues and considerations regarding mask mandates in South Carolina public schools.  
 
At press time, the public schools serving Daniel Island have not instituted a mask mandate, but one could be coming soon as neighboring jurisdictions have implemented such mandates.
 
In June 2021, the South Carolina state legislature enacted Proviso 1.108, which prohibits public schools from using state funds to enforce mask mandates. In early August 2021, the City of Columbia and Richland County Schools implemented mask mandates. The mandates included some rather broad language regarding enforcement. In short, “all school personnel” would be tasked with enforcement or face potential civil and criminal penalties. Those mandates were quickly met with legal challenges from Alan Wilson, the South Carolina attorney general. Wilson’s challenge stemmed from Proviso 1.108.
 
In early September, the Supreme Court of South Carolina weighed in on the issue in Wilson v. City of Columbia, 2021. The state Supreme Court noted early in its written opinion “the state legislature has elected to leave the decision to parents; the City believes it should make the decision without parental involvement.”  
 
Thereafter, the court held the mask mandate was too broad and put “all school personnel” in a position of choosing between “violating state law (Proviso 1.108) or city law (the ordinances).” 
 
Stated another way, state funds were therefore being used to enforce the mask mandate. The mask mandates were struck down by the court.
 
With that said, the court provided local government authorities with a well-lit path to implement a legal mask mandate by stating “we do not outright reject the possibility that a local government could impose a mask mandate without contravening Proviso 1.108.” In other words, a mask mandate could be legal and enforced so long as the school does not use money from the state’s pocket.
 
Following this signal from the court, on Sept. 13, 2021, the Charleston County School District (CCSD) unanimously voted to impose a mask mandate. Recognizing the path forward set out by the court, the CCSD stated “[i]t is our intent to enforce this policy without using [state] funds ... which in our opinion, will keep us in compliance with State Budget Proviso 1.108.”
 
Time will tell (probably accompanied by other legal challenges) if and how CCSD plans to enforce the policy without using state funds. The federal government has indicated it will provide funds for enforcement. Of course, as attorneys we can think of practical challenges to enforcement and the narrow dissection of state funds versus federal funds in a local public school.  
 
For now, Berkeley County schools remain on the sideline of the issue (as have many school districts), probably wisely waiting for other school districts to “test the water.”
 
Chris Mingledorff and Michael Patterson are attorneys with Mingledorff & Patterson LLC on Daniel Island. For more information, go to mptrial.com.
 

Daniel Island Publishing

225 Seven Farms Drive
Unit 108
Daniel Island, SC 29492 

Office Number: 843-856-1999
Fax Number: 843-856-8555

 

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