SC Education Dept. begrudgingly cancels mask policy to avoid ‘debate over constitutionality’

COLUMBIA, S.C. (WCSC) - The South Carolina Department of Education says they will be lifting mask requirements, but primarily to avoid contradicting Governor Henry McMaster’s executive order.

The SCDE’s statement comes on the heals of Gov. Henry McMaster’s Tuesday executive order allowing parents to decide whether their children will wear face masks in the classroom.

School officials said that South Carolina Superintendent Molly Spearman would be lifting mask requirements in schools “rather than wage a debate over constitutionality that would pit elected officials, students, and families against one another.”

Earlier in the statement, the SCDE disparaged the governor’s actions by saying that they found no legal basis for McMaster’s decision and thought he had been “successful in his mission of circumventing public health guidance by inciting hysteria and sowing division in the waning days of the school year.”

The Dept. of Education’s statement said a thorough legal review of McMaster’s Tuesday order found “no legal grounds by which the Governor can set aside a policy and regulatory directive issued by another constitutional officer or constitutional board whose power is not derived from the state of emergency nor the Executive Branch but by the South Carolina Constitution and Code of Laws. This power is reserved solely for the South Carolina General Assembly.”

State Superintendent Molly Spearman said her withdrawal of the state face covering policy would be effective immediately with the exception of a requirement for face masks on school buses, a policy enacted by the federal government.

“The SCDE recommends school boards and administrators confer with their legal counsel as to what liability protections, if any, are provided by DHEC’s opt out form. Superintendent Spearman and the SCDE continue to urge schools and districts to follow DHEC’s public health guidance as they have throughout the pandemic,” Spearman’s statement said.

Following McMaster’s executive order Tuesday, officials with the SCDE’s first reaction was that mask guidelines at schools throughout the state would remain until the department had an opportunity to speak with their legal counsel and provide further guidance. The SCDE originally cited the lateness of McMaster’s order, the legal ambiguities, and the absence of a DHEC opt out form in keeping the face covering regulations intact at that time.

DHEC released a “face mask opt-out form” that schools must use to get parental or legal guardian consent for their students to not wear a face covering if one is required by the child’s school or school district. DHEC sent out the form late Wednesday morning before the SCDE announcement

DHEC advised that, in order to be valid, the form must be completed without change by the parent or guardian or student, if aged 18 or older.

There is still no word if the Dept. of Education’s statement removing all mask restrictions will negate the “face mask opt-out form” previously proposed.

Shortly after the Department of Education released its statement on lifting the mask requirement, McMaster’s office released a brief response.

“The governor appreciates the department’s cooperation and willingness to follow the law,” McMaster spokesman Brian Symmes said.

Meanwhile, the South Carolina Department of Health and Environmental Control continues to recommend students, staff, and others in schools wear face masks, despite the governor’s order.

“DHEC’s recommendations regarding COVID-19 precautions, including wearing face masks, have not changed. Wearing face masks and taking other precautions are important disease prevention methods that protect not only the person wearing the mask but also those around them,” the state’s health department posted on Twitter. “DHEC continues to follow CDC guidance, backed by multiple research studies, that masks are an effective and essential tool for protecting the health of all South Carolinians during this ongoing COVID-19 pandemic. All students, staff, and others in schools should continue to wear masks through the end of the current school year.”

The S.C. Department of Education’s full statement from Wednesday is below.

After a thorough legal review of Executive Order 2021-23, the South Carolina Department of Education (SCDE) finds no legal grounds by which the Governor can set aside a policy and regulatory directive issued by another constitutional officer or constitutional board whose power is not derived from the state of emergency nor the Executive Branch but by the South Carolina Constitution and Code of Laws. This power is reserved solely for the South Carolina General Assembly. The Governor thoroughly understands the rule of law and surely recognizes this but has been successful in his mission of circumventing public health guidance by inciting hysteria and sowing division in the waning days of the school year.

Rather than wage a debate over constitutionality that would pit elected officials, students, and families against one another, Superintendent Spearman has, effective immediately, rescinded the state face covering policy with the exception of the school bus requirement that is now required by the federal government. The SCDE recommends school boards and administrators confer with their legal counsel as to what liability protections, if any, are provided by DHEC’s opt out form. Superintendent Spearman and the SCDE continue to urge schools and districts to follow DHEC’s public health guidance as they have throughout the pandemic.