That’s the argument made in recent court filings from governor Henry McMaster, Attorney General Alan Wilson and others being sued by the American Civil Liberties Union, on behalf of disability rights groups and parents of South Carolina children with disabilities. The plaintiffs are challenging a budget measure passed this summer that prevents South Carolina districts from using any state funding to require masks in schools.
The lawsuit percolates as South Carolina deals with a renewed Covid-19 surge, driven in part by the delta variant and a vaccination rate of just under 50% of eligible residents. Intensive care units in both adult and children hospitals are full, and more than 750 deaths have been reported in the first half of September. The average new cases reported daily is still around 4,500 — a level only surpassed during the winter peak, before vaccines were widely available.
The resurgence has forced a number of schools and two entire districts back to online learning within a month of returning in person. Some districts and cities have disregarded the ban, moving forward with implementing their own requirements.
Such a move was taken this week by the state’s second-largest school district, which on Tuesday voted to begin enforcing its own masking requirement, planning to use federal money to enforce the policy for its 48,000 students. Earlier this month, the state Supreme Court struck down the capital city of Columbia’s school mask mandate for children too young to be vaccinated, following a lawsuit from Wilson.
The ACLU suit 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, in violation of 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.
Last month, the plaintiffs filed for a temporary restraining order blocking the law from being enforced, with attorneys arguing that state officials “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.”
The defendants filed individual briefs opposing the restraining order request, with attorneys for McMaster saying the ACLU and its clients “cannot simply litigate their policy preferences or run to court over their disagreements with decisions made by their representatives in the General Assembly.”
McMaster’s attorneys also noted that the governor “has consistently encouraged South Carolinians to heed applicable public health guidance, which has included wearing masks in public settings where it is not possible to practice social distancing, and he has encouraged eligible and willing individuals to get vaccinated.”
Wilson also filed a memo opposing the restraining order request but also arguing that he shouldn’t have been named in the lawsuit, as “he played no part in any alleged violation of the statutes in question.”
Attorneys for several school districts argued that the injunction request “does not show the existence of immediate and irreparable injury regarding the School Board Defendants’ educational programs.” In a separate brief, attorneys wrote that Education Superintendent Molly Spearman “takes no substantive position on the issues” and “will continue to properly discharge the duties” of her office.
In a response, ACLU attorneys wrote that, in their filings, the defendants “who do engage with the substance of the arguments — most notably the Governor and Attorney General — confirm that Plaintiffs are likely to succeed on the merits.”
McMaster, who has called the lawsuit’s arguments “totally inaccurate,” has said repeatedly that parents alone should decide if children wear masks in schools and has urged South Carolinians to get vaccinated against Covid-19, though children under age 12 are not yet eligible.
“All we can do about that is to get the information to the people, tell them what works, what doesn’t work, and let them make the best decision for their own families, their own lives,” McMaster said Tuesday.