South Carolina’s Mask War: Two Cases Headed For Court Showdowns

Will there be clarity on these mandates? And on vaccine passports?

In the ongoing war over whether state agencies, municipalities and other political subdivisions in South Carolina can impose mask mandates and/ or “vaccination passports,” state attorney general Alan Wilson has been acting as an umpire of sorts.

Now Wilson’s ability to call balls and strikes in these cases will be subjected to “further review” as a pair of these disputes are headed to court … with one case likely to be heard by the S.C. supreme court as soon as next week.

To recap: Several government entities in the Palmetto State are seeking to reimpose mask mandates in response to rising infections and hospitalizations tied to the highly contagious delta variant of the virus. Leaders at these entities insist such measures are necessary to protect public health. Opponents maintain they are unnecessary, ineffective and violative of individual liberty.

Momentarily setting aside a discussion of the utility of such measures … are they legal in the Palmetto State?

That’s the question before us … and if any of you are currently holding one of those Magic 8-Balls, the response you would likely receive is as follows:

Reply hazy, try again.

Why is the situation surrounding these government diktats so murky?

It’s complicated …



South Carolina is no longer under the perpetual (and legally dubious) state of emergency which accompanied the initial Covid-19 panic. As a result, “emergency” powers previously exercised by S.C. governor Henry McMaster are back in the hands of the state’s legislative branch.

Unfortunately, the S.C. General Assembly failed to pass a law during the 2021 legislative session definitively addressing these issues. Instead, lawmakers sought to weigh in on mask mandates and vaccine passports piecemeal – on a temporary basis.

How is that strategy working out for them? Not well …

As I have noted in previous coverage, lawmakers inserted a trio of regulations addressing masks and vaccines in the fiscal year 2021-2022 state budget. These regulations – called “provisos” – took effect on July 1, 2021.

One proviso (1.108) was addressed to the S.C. Department of Education (SCDE). It forbade any government-run school district (or school) from compelling its “students and/or employees (to) wear a facemask at any of its education facilities.”

Cut and dried? Yes …

In this case, lawmakers were decisive and unambiguous – which is why Wilson’s office correctly determined a mask mandate imposed by Columbia, S.C. mayor Steve Benjamin on city schools was “in conflict with state law and should either be rescinded or amended.”

Not only is Wilson correct in his interpretation of the letter of the law in that case, legislative leaders have made their intent in passing the proviso abundantly clear.

Accordingly, there is no way Columbia’s mask mandate will survive judicial review … which is why Benjamin’s attorneys have reportedly advised him to start looking for the “exit ramp” in this debate.

Will the mayor follow their advice? Or will he make good on his threat to take the case “all the way to the U.S. supreme court?”

We shall see …

(Click to view)

(Via: S.C. Attorney General)

As for the other mask/ vaccine controversies in which his office is currently embroiled, Wilson (above) is on far shakier ground …

Specifically, the attorney general is facing a credible challenge from famed Palmetto State trial lawyer (and state senator) Dick Harpootlian over whether mask mandates imposed at the college and university level are enforceable.

Readers will recall the University of South Carolina recently announced the imposition of a mask mandate on students, faculty and staff for the fall 2021 semester, which kicks off next week. This mandate was rescinded, however, after Wilson issued an opinion arguing the clear “intent of the legislature” was to ban mask mandates and vaccine passports at institutions of higher learning.

As I noted at the time, I believe Wilson is absolutely correct in his assessment of the S.C. General Assembly’s intent. In fact, the legislative apoplexy which ensued in the aftermath of the school’s decision speaks volumes as to lawmakers’ feelings on the subject.

Unfortunately, the temporary provisos they wrote governing colleges and universities are nowhere near as clear as the one relating to K-12 schools.

“The wording of (these) regulations veers in a most undisciplined manner from confusing and obtuse in some places to narrow and needlessly specific in others,” I noted in a post on this debate last week.

Even Wilson has acknowledged the legislative provisos related to higher education are “ambiguous” and “inartfully worded.” 

One proviso in particular (117-190) holds that any “public institution of higher learning, including a technical college, may not use any funds appropriated or authorized pursuant to this act to require that its students have received the Covid-19 vaccination in order to be present at the institution’s facilities without being required to wear a facemask.”

(Click to view)

(Via: Harpootlian for SC)

In his lawsuit against Wilson, Harpootlian adroitly noted this proviso “prohibits unvaccinated persons from being singled out to wear a mask on campus” – but does not “prohibit all masking.”

On that count, Harpootlian is absolutely correct … and as a result, I believe he will win his case against Wilson.

In a reply (.pdf) to Harpootlian’s lawsuit filed yesterday, Wilson reiterated that the higher ed proviso in question was “very poorly written” but that “despite the confusing language, the intent of the General Assembly was to ban mask mandates at state-supported colleges and universities, consistent with the legislature’s prohibition of vaccination mandates at institutions of higher learning and its bar of mask mandates at public schools.”

Again, I believe Wilson is correct in his assessment of legislative intent … but the last time I checked, the letter of the law outweighs intent.

“Laws are not enforced on the basis of what politicians say about them after the fact,” I wrote recently. “Or at least they shouldn’t be.”

So where does that leave the situation?

While the law appears to be settled for government-run K-12 schools in South Carolina (where mask mandates were explicitly banned), everything else is up in the air. And while colleges and universities are currently complying with the issues Wilson has issued, a victory by Harpootlian in court would obviously end such compliance – and open the floodgates to all manner of new mask and vaccine edicts.

And yes, these edicts would stand until/ unless lawmakers decided to revisit the issue.

Bottom line? Lawmakers had an opportunity to deal with mask mandates and vaccine mandates decisively – and they failed miserably to do so.

Am I surprised by that? No … because state lawmakers fail spectacularly at virtually everything they are responsible for (public safety, infrastructure, energy, education, taxes, spending and employment, just to name a few).



(Via: FITSNews)

Will Folks is the founding editor of the news outlet you are currently reading. Prior to founding FITSNews, he served as press secretary to the governor of South Carolina. He lives in the Midlands region of the state with his wife and seven children. And yes, he has LOTS of hats (including that Mike Schmidt-era Philadelphia Phillies’ lid pictured above).



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