SC health officials decline to use emergency authority to impose school mask mandates
South Carolina health officials have the emergency authority to require that masks be worn in schools, but have determined that using it would not be feasible.
Dr. Edward Simmer, director of the S.C. Department of Health and Environmental Control, said Friday that after “careful legal analysis” and “extensive internal consideration,” the agency had decided not to invoke its statutory authority to issue a statewide order mandating masks in schools.
“We do have that authority,” Simmer said at Thursday’s DHEC board meeting. “However, I think there are some challenges practically to using it.”
The director said he believes a statewide school mask order would be both impractical — because COVID-19 conditions vary from district to district — and unenforceable due to a budget measure lawmakers passed earlier this year aimed at prohibiting school mask requirements.
“I don’t believe it’s appropriate to write an order you can’t enforce,” Simmer said.
The agency’s decision comes amid a prolonged surge in COVID-19 cases, especially among children, and record-high coronavirus hospitalizations that are stretching the capacity of hospitals statewide.
The state reported nearly 4,000 COVID-19 cases again Friday, and 99 more deaths. More than 11,000 people have died from coronavirus complications since the start of the pandemic, including more than 1,100 in just the last month.
DHEC, which still recommends schools require masks “to the extent they legally can,” continues to ask the General Assembly to revisit its anti-mask mandate provision and allow local school officials to make decisions about facial coverings, the director said.
“The agency believes this approach, along with the vaccination of every eligible South Carolinian, will best protect children and others from COVID-19 and help keep children in school while maximizing parental choice,” Simmer said.
SC lawmaker says DHEC should do more
Rep. Leon Stavrinakis, D-Charleston, who for weeks has called on DHEC to invoke its emergency powers in an effort to stem the surge in COVID cases, said the agency’s rationale for not imposing a statewide school mask requirement was “absurd.”
“Even if it is complicated, people are dying and that seems a lame excuse in a life and death situation,” Stavrinakis tweeted.
During a public health emergency, DHEC has the authority to “use every available means to prevent the transmission of infectious disease and to ensure that all cases of infectious disease are subject to proper control and treatment,” according to state law.
Its failure to impose that authority, Stavrinakis said, seems to him “overtly political.”
The Charleston lawmaker said he couldn’t imagine any reason for the agency’s inaction other than its desire not to cross the state’s Republican leadership, which opposes mask requirements.
“That’s a difficult spot for anyone to be in, where you know or maybe think there might be blowback from powerful political leaders,” Stavrinakis said. “But if you’re more worried about that than doing a job like they signed up for … then don’t sign up for the job.”
Gov. Henry McMaster, a staunch opponent of school mask requirements who earlier this year called it “the height of ridiculosity” for school districts to require facial coverings, appoints the DHEC board.
The board last year selected Simmer, a career Navy doctor, to lead the agency during the coronavirus pandemic. He said during his Senate confirmation hearing in February that he would make decisions based on science, correct the governor if he errs on health matters and stand up to any political pressure he faces in the role.
“I see my role number one, first and foremost, is I serve the people of South Carolina,’’ Simmer said at his confirmation hearing. “I can’t serve the people in the most effective way possible if I’m not honest.’’
A DHEC spokesman did not immediately respond to questions about whether political considerations had played any role in the agency’s decision not to invoke its emergency authority.
The agency also did not immediately respond to questions about its claims that imposing a statewide school mask order would be impractical and unenforceable.
Simmer said that because the situation in each school district is different, it would be “next to impossible” to craft an order that fits every district’s needs.
Writing mask orders tailored to specific districts would be possible, the director acknowledged, but would need to be discussed on a case-by-case basis and likely could not be enforced due to the state’s prohibition on mask mandates, which prevents districts from using state money to enforce masking.
“Proviso 1.108 is very clear that we cannot use school district personnel or anyone funded with state funds to enforce a requirement to wear masks,” Simmer said. “Which then prompts the question, ‘Well, then, who would?,’ because obviously who’s mostly watching the children are the teachers, the principals and other people in the school, all of whom are funded with state funds.”
Stavrinakis said he saw no reason why a school mask mandate couldn’t be applied statewide, given that all South Carolina counties are currently at what the U.S. Centers for Disease Control and Prevention considers “high” community transmission.
But even if DHEC wanted to set some other criteria for determining when schools must require masks, be it the number of infections, positivity rates or local hospital conditions, the agency has the data and the expertise to make that call, he said.
Stavrinakis, who is an attorney, dismissed the agency’s assertion that the mask provision in the state budget prevented them enforcing a mask requirement.
He said state health officials would have to work around the budget proviso, but that because it does not ban masks in schools outright, there are ways to do that.
The measure only restricts schools from using state money to enforce mask requirements, Stavrinakis said. That means cities and counties or even DHEC itself could enforce school mask mandates, according to the lawmaker.
“If DHEC said we are requiring masks in schools and told every city and county government around the state that it’s going to be their job to enforce these mask mandates, not the schools, I don’t think that would run afoul of the proviso,” Stavrinakis said.
Columbia, which last week had its emergency ordinance requiring masks in schools struck down by the South Carolina Supreme Court, has since passed a mask requirement that does what Stavrinakis has proposed.
In light of the state high court’s argument that school officials would inevitably be involved in enforcing the city’s prior school mask ordinance, Columbia’s latest iteration of its order specifies that city fire officials, not school personnel, would enforce the ordinance.
Stavrinakis said that despite his criticism of DHEC he recognizes the General Assembly is ultimately responsible for the controversial mask provision and, while its Republican leaders have given no indication they plan to revisit the measure, technically could still do so.
He said he just thinks state health officials should be doing everything in their power to get the pandemic under control.
“I’m not trying to let the Legislature off the hook. We should go back and fix what we screwed up,” Stavrinakis said. “But that doesn’t mean that the whole state has to be paralyzed from protecting our citizens from COVID until we do, or unless we do, because that’s just not the case.”
This story was originally published September 10, 2021 at 2:55 PM with the headline "SC health officials decline to use emergency authority to impose school mask mandates."