This court needs better jesters
South Carolina’s mask mandate ban is a poorly worded mess, and that might just save us
There’s cold comfort in realizing our enemies are incompetent.
The realization gives us hope of beating them. But if and when they win despite their incompetence, the defeat stings all the worse.
I tried to manage my expectations along these lines yesterday as I watched oral arguments before the South Carolina Supreme Court.
In two separate court cases, the state’s highest officials were trying to defend their attempted ban on school mask mandates. Watching the justices dissect the semi-literate legalese of our legislature’s brightest minds, and watching the state’s crackerjack attorneys squirm under questioning, I allowed myself to feel a thrill of hope.
Like other states under Republican control, South Carolina is attempting to stop schools and local governments from requiring kids to wear cloth masks in class during the COVID-19 pandemic. Wearing a mask is helpful in slowing the spread of the virus, and it’s almost nothing to ask of one’s neighbors — my 4-year-old son does it easily — but conservatives have decided to whine and shriek about it nonstop, so here we are.
Like the other states that spurned basic public health advice, South Carolina is in a world of hurt. We recently passed 10,000 COVID deaths with barely a flinch from the governor, and our new case rate is on track to surpass the peak we reached in January if we continue to do nothing about it. Hospital beds are filling up again. One local hospital system just announced an oxygen rationing protocol.
I’m a parent of three young children, all too young to receive a vaccine, and they are all attending a South Carolina public school right now. Our kids are good about wearing their masks, and I know our principal is on the same page.
But still. I don’t sleep well. I stay up at night grinding my teeth, imagining the unthinkable.
As of Tuesday, there were 26 children hospitalized with a COVID-19 diagnosis in South Carolina, including 8 in critical care and 4 on ventilators. All but 1 of the 26 were unvaccinated, according to the South Carolina Children’s Hospital Collaborative.
What’s unique about South Carolina’s attempted mask mandate ban is its mechanism of enforcement. We aren’t like Florida and Texas, where Govs. Ron DeSantis and Greg Abbott banned mask mandates via executive order.
In South Carolina, Gov. Henry McMaster was too chickenshit to write an executive order himself, and the legislature was too chickenshit to argue their case for a mask mandate ban in public committee hearings. So instead, some legislators slipped a mask mandate ban into a proviso within the 155,000-word general appropriations budget for 2021-2022. They scribbled it in with hardly a word of public debate.
(Governing by proviso must be in vogue right now; another proviso in this year’s budget served as justification for the state education superintendent’s prohibition on “““critical race theory.”””)
Proviso 1.108 states:
No school district, or any of its schools, may use any funds appropriated or authorized pursuant to this act to require that its students and/or employees wear a facemask at any of its education facilities. This prohibition extends to the announcement or enforcement of any such policy.
The Supreme Court heard oral arguments in two cases yesterday: Wilson v. Columbia, in which the city of Columbia passed a mask requirement and the attorney general sued them over it; and Richland County School District 2 v. Lucas, in which a Columbia-area school district and a parent of students sued the state’s top lawmakers seeking an injunction on the budget proviso.
The proviso had an obvious loophole: It said nothing about a municipal government passing its own mask ordinance and enforcing it with its own funds. Ever since City Council passed an ordinance requiring masks in schools within city limits, fire marshals from the Columbia Fire Department have been going around reminding students to mask up, with a little help from a cute mascot named Sparky. For this, Attorney General Alan Wilson sued the city of Columbia.
One of the state’s key arguments in both Wilson v. Columbia and Richland 2 v. Lucas is that teacher salaries come partly from state funds, so any time a teacher spends telling kids to put their masks on constitutes an expenditure of state money.
The state’s attorneys kept equivocating on whether the proviso constituted a de facto ban on school mask mandates, leading to some funny exchanges like this one in Richland 2 between the state’s attorney Susan Pedrick McWilliams and Chief Justice Donald W. Beatty:
MCWILLIAMS: I want to be clear — I think Chief Justice, you may be getting ready to ask me, is [Proviso] 1.108 a ban on masks? It’s not. It’s a ban on mask mandates. The legislature has made —
BEATTY: Tell me where in reading 108 does it say it’s a ban on mask mandates?
MCWILLIAMS: Uh, with use of appropriated or authorized funds.
BEATTY: So you can’t use funds from the 2021-22 budget to enforce a mask mandate. That’s what that says, isn’t it?
MCWILLIAMS: Well, it says that, your honor, but with respect —
BEATTY: Are we to go outside of what it says, and if we are to go outside of what it says, then tell me, what is the premise for doing so?
Arguing for the plaintiffs in Richland 2 v. Lucas, attorney Carl L. Solomon mocked the state’s reliance on “the magical dollar” to pass a de facto ban. He pointed out that the school district had money in reserves from other sources, including federal grants, and could use that money along with general accounting principles to comply with the proviso while requiring masks in schools.
There’s a grand irony that no one remarked on in the courtroom. The state Senate president and House speaker had a lot of gall tying new strings to state funding, given the fact they’re delinquent on billions of dollars in state funding for schools.
As of 2019, the legislature was underfunding the Base Student Cost — a minimum funding formula written in state law — by $497 million per year. They hadn’t met the minimum since 2009, and while I can’t see where anyone has run the numbers since my teammates and I did it at The Post and Courier, I highly doubt they’ve made good on their debts to the schools.
As a result of this chronic underfunding, teachers are underpaid and school maintenance projects are past due. Since 2010, the state legislature has been waiving the legal caps on classroom sizes year after year through — you guessed it — budget provisos. As a result, teacher workloads grew and never returned to pre-Recession levels.
Ten thousand teachers and other protesters swarmed the statehouse in 2019 demanding change, and the legislature swore it would fix its fundamentally inequitable funding formula that year. Our legislators promptly reneged on the promise, joking to the press that they might as well try to create peace in the Middle East as fix the school funding formula.
Now we’re waiting to hear the court’s decision on the school mask cases, testing the lower legal limits of our constitutionally required “minimally adequate” education system. Teachers are quitting rather than endure another year working for this state. In Dorchester School District 2 where I grew up, three teachers died of COVID within the first week of the school year. Everyone I know is tired and mourning and angry.
Here’s a letter I wrote to my local school board about their shameful capitulation to the state and its dubious proviso. Here’s another letter I wrote that applies to any local school board, city council, or county council in South Carolina. Share it around. Keep the pressure on.
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To lighten things up a little, here’s a song about school board meetings.