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Lawsuit argues South Carolina school mask mandate ban violates Americans with Disabilities Act

Lawsuit argues South Carolina school mask mandate ban violates Americans with Disabilities Act
Lawsuit argues South Carolina school mask mandate ban violates Americans with Disabilities Act(Mary Green)
Published: Sep. 1, 2021 at 9:28 PM EDT
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COLUMBIA, S.C. (WIS) - Disability rights groups and several South Carolina parents say their children are not being protected in school because of the state’s ban on mask mandates.

Now they’re suing state leaders and several school boards to stop that temporary law from being enforced.

Last week, the ACLU of South Carolina filed a lawsuit in the United States District Court for the District of South Carolina in Columbia on behalf of two disability advocacy organizations and nine South Carolina parents of children with disabilities, including asthma and autism.

The lawsuit centers on the one-year law written in the state budget, known as a proviso, that prohibits school districts from enforcing mask mandates, at the risk of those districts losing their state funding.

Among the plaintiffs is Able South Carolina, a Columbia-based nonprofit that advocates for disability rights and disability justice and provides one-on-one services.

Able South Carolina’s president and CEO, Kimberly Tissot, said their main concern is the students whose disabilities prevent them from wearing masks or social distancing. The CDC and medical studies have found some people with disabilities can be at greater risk for infection and severe illness from COVID.

“I have seen comments, ‘Well, why don’t the children with disabilities stay at home?’ Well, that’s not effective, and that’s not within their rights, so they should be able to go to school just like everyone else and have that school environment be safe for them as well,” Tissot said.

The lawsuit claims the mask mandate proviso violates the Americans with Disabilities Act, which prohibits discrimination based on disability.

“By taking an entire protective measure off of the table, the law effectively precludes schools from complying with their requirements under the ADA for students like our plaintiffs,” said Allen Chaney, the ACLU of South Carolina’s director of legal advocacy.

Gov. Henry McMaster, South Carolina Attorney General Alan Wilson, and Superintendent of Education Molly Spearman are listed as defendants, along with the Greenville County School Board, the Horry County School Board, the Lexington One School Board, the Oconee County School Board, the Dorchester Two School Board, the Charleston County School Board, and the Pickens County School Board. Those defendants have until Sept. 10 to respond to the lawsuit, according to Chaney.

McMaster has repeatedly reiterated that he believes the decision of wearing a mask is an individual one.

“It would be wrong for a school district or a government to tell a parent that their child must wear a mask when the parents think that is not good for the child,” the governor told reporters on Tuesday.

But Tissot said not enough families are choosing to mask up, and that choice is putting other students at risk.

“It protects the other people, not necessarily you, and so we really have to think that not every student in South Carolina has a healthy immune system,” Tissot said. “There’s kids with a variety of disabilities, and again, they may not be able to wear a mask to protect themselves.”

This lawsuit isn’t the only matter on the state’s hands right now involving the mask mandate proviso.

On Monday, the U.S. Department of Education announced it had opened a civil rights investigation into South Carolina’s law, along with similar pieces of legislation in four other states, and its effect on students with disabilities.

On Tuesday, the South Carolina Supreme Court heard two cases regarding the proviso, though the court has yet to announce any rulings from them.

Chaney said the ACLU of South Carolina would be closely paying attention to those rulings.

“The court could resolve the case in such a way that would make our case unnecessary,” Chaney said. “The court could, for example, strike down budget proviso 1.108 on state constitutional grounds and say that that provision is not enforceable. If that were the case, then schools would be back able to comply with their ADA requirements, and our lawsuit wouldn’t be necessary anymore. That’s not the only way that the court could resolve that case, and so the devil, of course, is going to be in the details.”

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