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DHEC director says agency could issue school mask mandate but wouldn’t be able to enforce order

Published: Sep. 10, 2021 at 2:26 PM EDT
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CHARLESTON, S.C. (WCSC) - The director of the South Carolina Department of Health and Environmental Control says his agency has the authority to issue a statewide emergency order mandating masks in schools but the challenge of enforcing the order makes it impractical.

“That’s where we stand. Yes, we have the authority, but from a practical standpoint, if we can’t enforce the order, then it’s not a good idea to issue one,” said Dr. Edward Simmer.

Simmer’s statements come in response to inquiries from the media, lawmakers and the public made asking if the agency has the authority to issue a mask mandate in state schools.

“DHEC’s position on this issue came after careful legal analysis of the governing statutes and extensive internal consideration by agency leadership and the DHEC board,” state health officials said. “The emergency authority previously referenced allows DHEC to respond quickly to local situations or outbreaks where rapid action is necessary, and steps can be taken to prevent immediate, imminent danger to the local population.”

Simmer said DHEC has the authority to issue the mandate but said there were challenges to using it including the situation at every school district is different, and trying to write a mandate that would fit every district would be next to impossible.

“I’ve talked with our team, and we don’t think there’s a good way to do a statewide order that really fits every school district,” he said.

The issue of enforcement was another block that Simmer cited in relation to the state proviso banning school districts from issuing a mandatory face mask order.

“I think the proviso is pretty clear,” Simmer said. “Proviso 1.108 is very clear that we cannot use school district personnel or anyone funded with state funds to enforce a requirement to wear masks. Which then prompts the question, ‘Well, then, who would?,’ because obviously who’s mostly watching the children are the teachers, the principals and other people in the school, all of whom are funded with state funds.”

“I don’t believe it’s appropriate to write an order you can’t enforce,” he said.

State health officials said should an outbreak in a school or school district warrant, DHEC may consider issuing a public health order for masks on a by-location basis. According to the state health agency, this would be a temporary action based on the latest evidence and the situation at the school or school district and with the intent to protect children, staff, and others from severe illness or even death due to COVID-19.

However, because of the proviso, such an order could not be enforced by school employees, DHEC officials said.

“I think it’s possible (to do a localized order),” Simmer said. “We’ve not had a request for that at this point. But that’s something we’d have to visit at that time, whether a more localized order for a specific school district or even a specific school would have merit. But I think we’d still come down to the enforcement issue, and I still don’t know how we would enforce even a more localized order. “That’s where we stand. Yes, we have the authority, but from a practical standpoint, if we can’t enforce the order, then it’s not a good idea to issue one.”

“DHEC continues to advocate for the legislature to consider revising the proviso to allow individual school districts, superintendents, and principals to make decisions about requiring masks in consultation with local and state health professionals,” DHEC officials said. “The agency believes this approach, along with the vaccination of every eligible South Carolinian, will best protect children and others from COVID-19 and help keep children in school while maximizing parental choice.”

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