A Federal Judge in South Carolina rules General Assembly proviso prohibiting mask mandates is ‘ILLEGAL'

In a late-night memo and order Wednesday, September 28, 2021, South Carolina Federal District Court Judge Mary Geiger Lewis ruled that the General Assembly's Budget Proviso 1.108 is illegal and unenforceable as to South Carolina school districts. 

Plaintiffs argued that by prohibiting any school from imposing a mask mandate, Proviso 1.108 interferes with a school district's ability to comply with its obligations under federal disability rights laws and illegally forces parents of children with underlying health conditions to choose between their child's education and their child's health and safety.  In the lawsuit,

Plaintiffs are parents of students with recognized disabilities under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Section 504), and the American Rescue Plan Act of 2021 (ARPA).  Plaintiffs sought relief to stop enforcement of Proviso 1.108 because it bars schools and localities from requiring masks in schools. 

Judge Mary Geiger Lewis granted Plaintiffs' request for an injunction and declaratory relief, barring enforcement of Proviso 1.108 and ultimately concluded that Proviso 1.108 is illegal.  In her Order, Judge Lewis states that Proviso 1.108 violates laws passed by Congress, rendering enforcement of Proviso 1.108 by school boards, Superintendent Spearman, Governor McMaster, Attorney General Wilson, and others illegal.  

What does this mean? 

• Proviso 1.108 has been declared illegal, and the General Assembly and state officials are prohibited from punishing school districts under the current budget proviso.
• School boards and district administrators may implement mask requirements as they deem appropriate due to public health and safety conditions. 
• School districts must be able to implement mask mandates to protect and prevent discrimination against students with disabilities.
• However, school districts are not required by Judge Lewis's Order to issue mask mandates but are required by the S.C. Department of Education (SCDOE) to update their COVID-19 mitigation plans as necessary.

Per the SCDOE's September 29, 2021, Memo: Under the ARPA, school districts who received Elementary and Secondary School Emergency Relief Funding were required to create and post publicly on their website a Safe Return to In-Person Instruction and Continuity of Services plan. In this plan, districts were asked to address how they were addressing each of the Centers for Disease Control and Prevention's (CDC) recommendations for mitigating the spread of COVID-19, including the universal and correct wearing of masks. Those districts that made reference to Proviso 1.108 as rationale for not following the CDC's recommendations in their plans will need to revise their plans immediately as a result of the Court's order.