COLUMBIA, S.C. — After a federal judge blocked South Carolina’s ban on mask mandates in public schools, saying it discriminates against children with disabilities, the state’s Republican governor and attorney general have filed an appeal of the judge’s ruling.
Gov. Henry McMaster and Attorney General Alan Wilson have called upon the 4th Circuit Court of Appeals to issue a temporary restraining order and preliminary injunction to stay the U.S. District Court ruling that has at least temporarily blocked a state measure aimed at banning mask requirements in schools.
Their request for injunction was filed Wednesday afternoon and their appeal was filed Thursday morning.
Earlier this year, state lawmakers included a provision in the budget that prohibits school districts from using state money to enforce a mask mandate.
On Wednesday, U.S. Judge Mary Geiger Lewis said in her order that the budget proviso regarding masks discriminates against children with disabilities and is in violation of the Americans with Disabilities Act and other federal laws.
“It is noncontroversial that children need to go to school,” Lewis wrote. “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.”
Leading up to Lewis’ order, the American Civil Liberties Union filed the lawsuit last month on behalf of Disability Rights South Carolina, Able South Carolina and a group of parents with disabled children. The lawsuit said the provision that bans mask requirements can lead to children who are particularly susceptible to severe illness from COVID-19 being excluded from public schools.
The lawsuit named McMaster, Wilson, state Superintendent of Education Molly Spearman and several school boards as defendants.
Lewis’ order prohibits the named defendants from enforcing the one-year law.
In response to Lewis’ order, the state’s education department issued new guidance, saying school districts across the state can go ahead and require face masks on their campuses.
“In its order, the court used strong language to share grave concerns about barriers to meaningful access to in-person education, programs, services and activities for students with disabilities,” said Spearman, who, unlike some elected officials, supported giving local school boards authority to make their own decisions.
Following the federal judge’s order, at least one South Carolina school district issued a mask mandate in its schools in an effort to combat the rapid spread of COVID-19.
Meanwhile, McMaster said Wednesday he would fight Lewis’ decision up to the U.S. Supreme Court if necessary.
“We disagree with the judge’s position and we plan to appeal,” Wilson said in a statement on Wednesday.
Hours later, he followed through.
In a complicated turn of events, the S.C. Supreme Court nearly overlapped Lewis’ order when, on Thursday, it issued a contrasting ruling of its own that declared the state budget proviso concerning mask mandates is constitutional.
Richland 2 had earlier asked the state’s high court to issue an opinion on whether the ban on mask mandates was constitutional, along with a related question about a cap on the number of students allowed to enroll in virtual schooling programs amid the ongoing public health crisis.
Attorneys for Richland 2 argued the proviso was unconstitutionally vague and interfered with a school’s ability to provide the constitutionally mandated “minimally adequate” education. They also argued the Legislature would need to pass a general law, not a proviso, to ban mask mandates from schools.
The court, however, said that it is constitutional for the state to block the use of state dollars to enforce mask mandates in schools.
Later Thursday, and after consulting with attorneys, Richland 2 Superintendent Baron Davis said the district will continue to require face masks, citing guidance from the U.S. Centers for Disease Control and Prevention and the state’s health and education departments.
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