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SC students with disabilities spar with state officials over near-ban on school mask mandates before Fourth Circuit

Advocates for students with disabilities argued that by refusing state funds to schools that adopt mask mandates, a South Carolina rule discriminates against kids who face a high risk of contracting Covid-19.

COLUMBIA, S.C. (CN) — Civil rights advocates urged the Fourth U.S. Circuit Court of Appeals Thursday to stop South Carolina from holding state funds from public schools that adopt mask mandates amid the deadly Covid-19 pandemic.

South Carolina’s Republican-led General Assembly enacted a budget provision banning school districts from using state funds to announce or enforce mask mandates, prompting several groups to sue on behalf of students who they say are endangered by the rule.

Attorney John Freedman, arguing on behalf of the plaintiffs before a three-judge panel on Thursday, said the state’s rule violates anti-discrimination laws.

“It made it harder, if not impossible, for schools to adopt a modification deemed the most effective modification by public health authorities,” he said. 

His clients’ lawsuit asserted multiple claims including “disparate impact” and “failure to accommodate” under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

“Defendants urge this course knowing that it is contrary to the overwhelming consensus of the medical and scientific community. And they do so knowing its discriminatory consequence: forcing South Carolina students with disabilities to choose between their health and their education,” wrote attorneys for the groups in an appeal dated Nov. 29. 

Among those seeking a preliminary injunction to block the rule are Disability Rights South Carolina, the American Civil Liberties Union and several parents of students who have disabilities.

William Lambert, senior legal counsel for Republican Governor Henry McMaster’s office, defended the rule on Thursday. He said it prohibits schools from using state funds to enforce mask mandates but does not bar mask mandates themselves. 

Gov. McMaster and state Attorney General Alan Wilson are the defendants in question, as the two have publicly and litigiously defended the rule after a federal court blocked it in September.

School districts may use federal or local funds to enact mask mandates, according to Lambert, just not state funds. 

“There is some increased risk, we do not dispute. The record is not clear as to what that increased risk is,” Lambert responded when asked by U.S. Circuit Judge James Wynn if he disputed the danger posed by Covid-19 to many students. 

Wynn, a Barack Obama appointee, pushed back against Lambert’s claim.

“But the record is replete with instances of what the CDC says and others. Where is it in the record that says it’s OK to send someone with a severe disability to school and not allow the school to enact a mask mandate if they need to?” Wynn asked. 

Lambert said that the CDC and the South Carolina Department of Health provide multiple suggestions of Covid-19 mitigation measures other than “masking.” 

Freedman was quick to point out that mask-wearing is considered “the most effective accommodation” when aiming to prevent the spread of Covid-19 to at-risk populations. 

Based on studies of the last school year, the CDC said in November that it recommends schools maintain at least three feet of physical distance between students within classrooms, combined with indoor mask-wearing, in order to reduce transmission risk.

“Fifty-five percent of public school funding in South Carolina comes from federal or local funds, and there is nothing in this record that indicates that any school district is incapable of enacting a mask mandate with federal or local funds,” Lambert said. 

U.S. Circuit Judge Paul Niemeyer, a George H.W. Bush appointee, chimed in to summarize the plaintiffs’ position.

 “They’re seeking conduct that every student would have to abide by in order to protect them, which is not discriminatory,” he said. 

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Judge Wynn asked whether the state can decide that it won’t allocate funds to schools that enroll African American students.

“Absolutely the state cannot do that,” Lambert replied, before being cut off by Wynn’s follow-up inquiry.

“What about sex discrimination, can they do it to women? Then why can they do it to people with disabilities?” Wynn asked.  

Lambert retorted that Wynn’s hypotheticals differ from the facts in this specific case. 

“Those would discriminate on their face in a way that violates federal law,” Lambert said of Wynn’s examples. “Under the practicalities of not providing 45% of school funding to schools that did those things, it would be impossible to run schools.”

Wynn again interjected to remind the governor’s counsel that, according to federal law, the state may not discriminate against those with disabilities.  

If South Carolina does not provide this funding, the judge said, no school will undertake the obligation of enacting a mask mandate. 

During his reply, Lambert later noted that South Carolina has 77 public school districts, only 13 of which have enacted a mask mandate.

Ten of those districts did so before the provision was enjoined and three did so afterward, he added, suggesting that the proviso may not have impacted schools’ decisions to enact mandates. 

“They want mask mandates, and the place to ask for those is from the school districts,” Lambert said. 

The best way to go about seeking redress, the attorney pressed, is to sue individual school districts over any alleged failure to enact mandates. 

Not the state. 

Proceeding to put pressure on his arguments, Wynn asked Lambert, “Isn’t this really kind of discriminatory against the poor districts?”

“What child of a family that is wealthy are going to have to confront this? This is only dealing with those who are in a public school setting and those who do not have a choice in terms of where to send their children,” the judge continued, adding “but those with means and money won’t ever face this situation, will they?”

Lambert responded by repeating that the rule does not prohibit mask mandates. 

Seven school districts in the state have mask mandates still in place. Districts who choose to adopt a mandate, however, must figure out how to contend with the funding problem introduced by the rule. 

“The purpose is to express the general assembly’s preference for one policy over another,” Lambert said when asked what the purpose of the rule actually is. “To give parental choice on masking and to promote other mitigation strategies other than universal masking.”

Multiple times during his arguments, Lambert shifted any potential blame concerning lack of mask safety from the state to the school districts that don’t have a mask policy. 

“No one’s asking for a mandate,” Wynn interjected, contending that those who brought the case are only asking to have extra barriers removed in case one is needed in a district. 

Every court in the nation that has reviewed similar questions, Wynn said, has stated that there’s an increased risk of Covid-19 contraction in “these situations where you don’t have these kinds of mask mandates.” 

Freedman agreed, turning the debate back to a ruling by the South Carolina Supreme Court.

“When the City of Columbia was sued by the defendant attorney general, [the] South Carolina Supreme Court said any effort to enforce the proviso must be without any assistance from school personnel and without a penny of state funds, and how is a school supposed to do that?” Freedman said.

He argued that teacher and staff salaries are all partially funded by the state, making it extremely difficult to isolate which actions by a teacher are “state-funded.” 

Freedman clarified the state Supreme Court’s position by adding, “If you’re a teacher sitting there in a classroom, and you’re there after lunch and you have to remind somebody, a student, to put their mask back on, how are they supposed to account for, ‘Am I spending state money when I’m doing this? Am I using non-authorized funds?’”

Gov. McMaster’s original position, Freedman said, was that virtually any enforcement or announcement of a mask mandate in a public school would require some use of state-appropriated funds. 

“So their position, up until the reply brief, consistent with what the South Carolina Supreme Court held, is that it’s simply not possible,” he said of the Columbia case. 

U.S. Circuit Judge Stephanie Thacker, a Barack Obama appointee, wanted Freedman to address a different case recently decided in Richland, asking if that case had changed the legal landscape surrounding this type of issue in the state. 

“The Richland case endorsed the finding of the Columbia case,” Freedman responded, “the Richland district came and said, ‘We’d like guidance on how to comply with this provision,’ and they [the court] said, ‘We’re not going to provide you guidance.’”

Thacker asked if the governor or the attorney general have taken any action against the districts that imposed mask mandates since the Richland ruling. Freedman’s answer was no. 

The panel did not indicate when it would make a decision regarding the preliminary injunction.

Freedman and Lambert could not be immediately reached for comment.

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Categories / Appeals, Education, Government, Health, Regional

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