The South Carolina Supreme Court heard arguments Tuesday in two challenges to a state rule limiting the ability of school districts to require masks for students and educators.
South Carolina lawmakers put a requirement in the state budget threatening school districts with withholding state money if they required masks. That provision took effect July 1, when the state was averaging less than 150 COVID-19 cases a day.
Now the state is seeing around 4,500 new cases daily, and deaths are spiking as hospitals become strained at a time when children return to school and vaccinations lag.
In one case, state Attorney General Alan Wilson has sued the city of Columbia over City Council's decision to pass a state of emergency over the rise in cases and then to require masks for workers and anyone under age 12 in schools. City leaders have said the mask requirement, which carries a $100 violation fine, is meant to protect children too young to be approved for the coronavirus vaccine.
In the second challenge, Richland School District 2 is suing the state, asking the Supreme Court justices to suspend the mask ban until it can rule on the previous case.
On Tuesday, lawyers supporting the mask mandates said the legislature overstepped constitutional boundaries by putting the mask rule — a policy unrelated to state finances — in the budget, which aims to raise and money. State law requires legislation have a single subject.
City and school authorities can also draw from separate pots of money, such as local funds, to enforce mask-wearing, said Chris Kenney, an attorney representing the city of Columbia.
"All they have said is, do not spend our money on a mask mandate," Kenney said. "The city's ordinance complies with that entirely."
Attorneys for the state disagreed, pointing out that state funds help pay for the salaries of the teachers and administrators who would have to enforce a mask mandate.
Several justices questioned whether it was possible to separate the use of state money and other funds when enforcing the mandate.
Deputy Solicitor General Emory Smith said that school districts can't make such distinctions in their accounting, given how closely teachers work with students and how much time they spend in the classroom. "It's all intertwined," he said.
Some school districts have already implemented mask mandates despite the budget requirement, though most are still waiting to see what the court decides. With most districts entering the third week of school, health officials have already tracked more than 3,000 COVID-19 cases among students and staff, with thousands more quarantined.
Chief Justice Don Beatty said the court's ruling will be based purely on law, noting that the court isn't made up of medical health professionals or politicians.
The high court ruled earlier this month that a different budget requirement did not prevent the state's public colleges and universities from instituting mask mandates on their campuses.
The federal Department of Education has also opened a civil rights probe into South Carolina and four other Republican-led states with similar bans on school mask mandates, saying the policies could amount to discrimination against students with disabilities or health conditions.
Disability rights groups and parents of children with disabilities represented by the ACLU have made similar arguments in an attempt to reverse the state ban on mask mandates in federal court.
Many others — including Republican state Education Superintendent Molly Spearman, the state's health agency, pediatrician organizations, House Democrats, teachers groups, an association of school board members and a group of two Democratic and two Republican state senators — have all said schools should be able to require masks.