ACLU seeks to halt South Carolina law banning school districts from requiring face masks

Disability rights groups and parents of children with disabilities want an immediate halt to a South Carolina law banning school districts from requiring face masks, as students across the state begin a new school year amid a renewed rise in coronavirus cases.

Last week, the groups and parents filed for a temporary restraining order blocking the law from being enforced, while their lawsuit challenging the measure proceeds.

"Defendants are illegally forcing South Carolina families who have children with disabilities to choose between their child’s education and their child’s health and safety," wrote attorneys for the groups, who are represented by the American Civil Liberties Union.

The ban, they wrote, "needlessly and unconscionably exposes South Carolina school children and their families to a heightened risk of infection, hospitalization, and death."

State officials have until Sept. 9 to respond to the request in court.

A budget measure passed this summer prevents school districts from using any state funding to require masks in schools. But some districts and cities across South Carolina have disregarded the ban, moving forward with implementing school mask mandates. The state’s attorney general is suing the capital city of Columbia over one such provision, with arguments expected later this week in the South Carolina Supreme Court.

The ACLU lawsuit, filed earlier this month against top state officials including Republican Gov. Henry McMaster, alleges that the mask mandate ban disproportionately affects students with underlying health conditions or disabilities, who are at risk of becoming seriously ill if they contract COVID-19.

The plaintiffs allege that the ban violates the Americans with Disabilities Act and the Rehabilitation Act, under which public schools cannot exclude students with disabilities or segregate them unnecessarily from their peers. Schools are also required to provide reasonable modifications to allow students with disabilities to participate fully.

Current Centers for Disease Control and Prevention guidance recommends that everyone in a school building, regardless of vaccination status, wear masks indoors — guidance that South Carolina Education Department officials have noted publicly that they couldn’t follow, given the budget proviso.

The state Department of Health and Environmental Control has said that it "strongly recommends mask use for all people when indoors in school settings." As of public health data updated Wednesday, 1,905 COVID-19 cases had been reported in students and employees at public and charter schools across the state.

McMaster has defended the budget proviso, calling the lawsuit's arguments "totally inaccurate" and saying, earlier this year, that it was "the height of ridiculosity" for a school district to require a mask over any parent’s wishes that their child go without one.

Stressing throughout the pandemic his belief in personal responsibility, not universal mandates, to curb the virus’ spread, McMaster has also urged South Carolinians to get vaccinated against COVID-19, though children under age 12 are not yet eligible.

On Monday, the federal Department of Education announced that its Office for Civil Rights was investigating five Republican-led states, including South Carolina, that have banned school masking requirements, saying the policies could amount to discrimination against students with disabilities or health conditions.

If the investigations determine that the bans have been discriminatory, it could lead to sanctions including a loss of federal education funding.