SC attorney general sues Columbia over school mask mandate
READ MORE
Columbia’s COVID-19 Emergency Order
Mayor Steve Benjamin declared a state of emergency for Columbia that includes mask requirements for schools within the city limits. What will that mean for your child this year? Here’s the latest.
Expand All
Republican South Carolina Attorney General Alan Wilson is taking the city of Columbia to court over the city’s ordinance that mandates students and faculty wear masks in some schools.
Wilson announced Thursday that he had filed suit against the city. The attorney general’s lawsuit was filed with the state Supreme Court, a move that would bypass the lower courts.
Wilson says the mask mandate violates state law.
“Besides the City of Columbia, the lawsuit mentions and would also apply to all cities, towns, counties, and school boards that have passed or are seeking to pass mask mandates,” Wilson’s office said in a release.
Columbia City Council recently passed a measure that requires students and faculty at 43 elementary and middle schools and day cares in the city to wear masks as COVID-19 cases have risen sharply in South Carolina in the last month. The city’s move came despite a one-year law written into the state budget by legislators that prevents schools from spending state funds on mask mandates.
The attorney general’s office release on Thursday said the city’s move runs afoul of that one-year budget law.
“Attorney General Wilson encourages everyone to wear masks when appropriate and encourages anyone who can to get the COVID vaccination,” the release said. “However, the General Assembly passed a budget proviso that prohibits schools or school districts from requiring masks.”
Aside from the city of Columbia’s ordinance, Richland County Council passed an ordinance requiring masks in elementary and middle schools in unincorporated areas of the county. Meanwhile, at least two school districts in the state, Richland One and the Charleston County School District, said they would require students to wear masks in school despite the state budget law.
The lawsuit says the attorney general wants the state Supreme Court “to resolve a dispute over the controlling effect of a legislative proviso regarding mask requirements so that all jurisdictions will be informed about what law governs.”
The General Assembly folded a one-year law, called a proviso, into this year’s state budget in an attempt to block mask mandates in state schools. It reads as follows: “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 prohibition extends to the announcement or enforcement of any such policy.”
In the Thursday lawsuit, Wilson argues the language in the one-year budget law is clear.
“Although we recognize that the city is acting out of genuine concern about the spread of the COVID-19 virus and its variants, it cannot do so contrary to the law of this state,” the suit says. “The proviso is quite clear that masks are not to be mandated by government for the schools of this state.”
In response to Wilson’s suit, Columbia Mayor Steve Benjamin continued to say the city’s move was legal and that it has the “legal and ethical obligation to protect the health, safety and well-being” of local residents.
“Parents and teachers across our city, across Richland County, in fact across the state, have been vocal in asking us to make sure that children are safe in schools,” Benjamin said. “As SCDHEC has just reported more than 3,200 new COVID cases in one day, we think it is counter to the best interests of community health to have any discussion other than what proven measures we can use to protect our children.”
At-large City Councilman Howard Duvall said Thursday that the city had been “certainly expecting” for the attorney general to file a motion. He said he thinks that it should go to the state Supreme Court.
“We need the Supreme Court to rule on it, and I feel sure the Supreme Court is going to support our position that it is both a Constitutional and statutory right for municipal governments to protect the health and safety of their citizens,” said Duvall, the former director of the state’s Municipal Association.
This would be the second case to go before the state Supreme Court this summer regarding masks in schools. Earlier this week, the state’s highest court ruled that colleges and universities in South Carolina could require masks to be worn by all students, guests and faculty. This came after Wilson wrote interim University of South Carolina President Harris Pastides a letter, arguing that a state budget proviso passed by the General Assembly — separate from the budget law pertaining to K-12 schools — prohibited a universal mask mandate at state universities.
But a USC professor sued over the matter, and the Supreme Court sided with the professor.
“We declare the terms of Proviso 117.190 (budget measure) clearly and unambiguously prohibit a state-supported institution of higher education from discriminating against unvaccinated students, faculty, and staff by requiring them to wear masks,” the court wrote in the USC case. “The proviso does not prohibit a universal mask mandate.”
Wilson first sent a letter to Benjamin and the city council on Aug. 10 saying he thought the city’s school mask ordinance was unlawful, and gave the city an Aug. 13 deadline to change its mask law or rescind it, or Wilson would consider legal action.
However, it was quickly clear that city leaders were willing to let the matter go to court.
“Our city government has a constitutional authority and responsibility to preserve the lives, safety, health and welfare of our city and citizens,” Benjamin said on Aug. 10. “This, at times, requires we must act swiftly and decisively on an emergency basis, and we are assured we are not in violation of state law, and are prepared to defend our decision.”
On Aug. 5 the Columbia City Council voted 5-1 in a special session to approve Benjamin’s emergency declaration requiring masks in some schools. Violators face a potential $100 city fine.
A host of Republican leaders, including Wilson, Gov. Henry McMaster, state House Speaker Jay Lucas and state Senate President Harvey Peeler, have said that proviso renders the city’s mask rules illegal.
“That (Columbia) mandate is, I believe, contrary to state law,” McMaster, a former U.S. attorney and the state’s former attorney general, said at a recent news conference. “The state law is crystal clear that state funds are not to be used to enforce a mask mandate. The very people who were listed (in the city’s ordinance) as those responsible to enforce the mandate are, of course, paid in whole or in part with state funds.”
The governor has consistently said parents should make the choice as to whether their children wear masks in school.
Senior Assistant City Attorney Patrick Wright on Aug. 11 sent Wilson a letter, insisting that Columbia’s mask rules for elementary and middle school students are legal. Wright cited prior state Supreme Court case law, and argues, essentially, that having a mandate prohibition rolled into the state budget is not germane to fiscal issues or raising and spending taxes.
In the Thursday lawsuit, Wilson argues the terms of the budget proviso “overwhelmingly demonstrate the legislature’s intent” to prevent mask mandates in school.
“This (state Supreme) Court has, time after time, upheld the General Assembly’s power to appropriate funds and attach strings to (budget) appropriations,” the suit says. “However, in this case the City of Columbia has taken scissors to those strings and cut them to pieces.”
This story was originally published August 19, 2021 at 1:38 PM with the headline "SC attorney general sues Columbia over school mask mandate."
