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.