The parents who brought the suit contend the order “illegally forces parents … to choose between their child’s education and their child’s health and safety.” The parents claim the proviso also violates two federal laws: the Americans with Disabilities Act and the Rehabilitation Act.
In September, a federal District Court judge ruled that South Carolina couldn’t try to ban districts from having mask requirements. The ruling came in a suit that was filed on behalf of disability rights groups by the American Civil Liberties Union against state leaders, including McMaster and South Carolina Attorney General Alan Wilson.
W. Grayson Lambert, an attorney for the state, told the 4th Circuit panel during the 45-minute argument session on Thursday that the proviso was not actually a ban on mask mandates, and that school districts might use local and state funds to enact them under the proviso.
More than 10 South Carolina school districts, which include an estimated 10,000 disabled children, have imposed mask mandates at one point or another, according to lawyers involved in the case.
Judge James Wynn Jr., an appointee of former President Barack Obama, noted during Thursday’s arguments that despite the budget focus of the proviso, the state superintendent specifically said the measure prohibited mask mandates. Wynn also asked “who in the world” would believe it wasn’t a ban on mask mandates, if state leaders threatened to withhold state funding.
“It’s easy to blur — and I might suggest that the press has blurred it,” said Judge Paul Niemeyer, a George H. W. Bush appointee. “The proviso is merely, ‘Do not spend state money on this function.’”
Wynn and Lambert went back and forth several times over the issue of fining noncompliant schools and potential discrimination against the disabled students. Wynn brought up other protected classes, like race and gender, to ask why the complaint brought by disabled students does not also amount to discrimination.
Lambert responded that ordering a state to comply with federal law and telling a state how to comply were two different concepts. And Niemeyer insisted that the denial of funds to offending districts could not be viewed as discrimination.
An attorney for the disabled students, John Freedman, argued that the law required public entities to make reasonable modifications to ensure those with disabilities could receive equal access to programs or services. He said a request for a school to have a mask mandate could be a “plausible accommodation.”
“Your clients are not asking them to impose a mask mandate on schools — they’re only asking that a barrier be removed,” Wynn told Freedman. “That would allow the schools to do so. That’s a reasonable thing.”
The judges issued no immediate ruling, but Niemeyer appeared to be prepared to side with the state, while Wynn was aligned with the disabled students.
The third judge on the panel, Obama appointee Stephanie Thacker, seems likely to be the deciding vote in the case. She was less vocal during the arguments, offering no clear sense of her likely vote on the dispute.
Last month, the court denied a stay South Carolina officials requested that would have allowed them to enforce the budget proviso while the appeal went forward. The court’s order said Niemeyer would’ve granted the stay, but he was outvoted by Wynn and Thacker.
Josh Gerstein contributed to this report.