How the state budget blocked SC schools from implementing mask mandates

COLUMBIA, S.C. (WCSC/WIS) - A temporary law about face masks in the South Carolina state budget could soon face a legal challenge.

State Attorney General Alan Wilson sent a letter Tuesday to Columbia City Council and Mayor Steve Benjamin giving them until the close of business on Friday to bring its ordinance requiring face masks in daycares, elementary and middle schools in Columbia into compliance with state law. In a response Wednesday, officials with the City of Columbia said those laws are “unconstitutional and unenforceable.”

Wilson also warned state Sen. Dick Harpootlian, D-Richland, that a mask mandate for universities or colleges would violate state law.

In both cases, Wilson relied on the General Assembly’s intent to issue his opinions.

But there are now questions about Wilson’s own interpretation and whether the temporary law could actually withstand a legal challenge.

Upstate Rep. Stewart Jones, R-Laurens, introduced Proviso 117.190 titled “Masks at Higher Education Facilities,” which states, “A public institution of higher learning, including a technical college, may not use any funds appropriated or authorized pursuant to this act to require that its students have received the COVID-19 vaccination in order to be present at the institution’s facilities without being required to wear a facemask. This prohibition extends to the announcement or enforcement of any such policy.”

Wilson admits the Proviso was “inartfully written.”

But while there is some pushback now from other lawmakers, there was no outrage on the floor when this Proviso was introduced.

After it passed, Jones introduced a Proviso designed to make sure K-12 students would not have to be vaccinated in order not to wear a mask at school.

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Proviso 1.108 states, “No school district, or any of its schools, may use any funds appropriated or authorized pursuant to this act to require that its students and/or employees wear a facemask at any of its education facilities.”

This did get some pushback from a couple of Democratic lawmakers who tried to table the amendment to the budget. At the time, Rep. John King, D-York, warned this law could come back to bite them.

“You are tying the hands of school districts, colleges and universities when we vote for stuff like this,” he said.

But that pushback was small compared to the current firestorm of lawsuits, accusations, and confusion.

House Minority Leader Rep. Todd Rutherford, D-Richland, says he now regrets not taking up the fight at the time.

“It was just stuck in and again it was stuck in back before June, and everyone thought COVID was going to be over that when we finally got to the point that enough adults vaccinated that we weren’t going to have to deal with it anymore,” Rutherford said. “So why are we fighting about this for four or five hours? It wasn’t worth it. Now looking back on it, we should have because looking at what this budget proviso might do to children’s lives is something we may never be able to recover from.”

While Jones did tie masks to vaccinations in his introduction, he says his intent was to make sure there would be no mask, vaccine or testing requirements at any public schools or colleges this fall. Despite guidance from the South Carolina Department of Health and Environmental Control showing masks to be an effective mitigation tool, Jones says he is not sure masks work to curb the spread of COVID-19.

“That is the intention of the proviso is to give people their freedom back to give them an individual responsibility to make these decisions,” Jones said. “At the end of the day, all these decisions, I believe, are left to parents, the teachers in the schools, the people who are left in the local community. I think that’s where it’s best left and when I say that I mean individuals.”

Rutherford says he worries the temporary state law that bans districts from using state public health guidance will cost children their lives.

“A lot of people saw it. [It] didn’t feel like a protracted floor battle about it was worth it simply because we saw the light at the end of the tunnel, we now know the light was a train, that light was the delta variant,” he said.

When Jones first introduced the amendments, he said he did not want masks mandated based on vaccination status. But he said Wednesday he shared his broader intent when he introduced an earlier amendment that combined the two that later passed.

“This proviso, this amendment basically ensures students and employees in K-12 and higher learning that receive state funding cannot force vaccines or masks in those schools,” he said when introducing that original proposal that he later split. That one, where he was more specific about his intent, was tabled and never became law.

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