The South Carolina Supreme Court ruled Tuesday that a mask mandate instituted by the University of South Carolina last month does not violate a state budget proviso banning discriminatory face covering requirements.
University officials withdrew the mask rule earlier this month after state Attorney General Alan Wilson opined that the mandate was "likely not consistent with the intent of the Legislature."
Wilson had cited a budget proviso passed by the General Assembly that states public institutions of higher learning can't use appropriated funds 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."
But the measure does not prevent public universities and colleges from establishing a universal requirement for face coverings for all students and staff regardless of vaccination status, according to the high court.
"In fact, the proviso implicitly contemplates there could be a universal mask mandate, but its terms prohibit only discrimination against unvaccinated individuals by requiring them to wear masks when vaccinated individuals are exempt from that requirement," the unanimous opinion reads.
School authorities initially said at the end of July that they would require "face coverings to be worn at all times inside all campus buildings" except dorms, private offices or dining halls. But after Wilson's opinion, acting President Harris Pastides, a trained epidemiologist who once led the university's school of public health, told the campus the university would change course and only encourage masking indoors.
The court's opinion followed a lawsuit by a University of South Carolina professor whose attorneys argued Wilson's interpretation was flawed. Because the astrophysics professor's 73-year-old wife is immunocompromised, he could risk catching the virus from unmasked students and passing it on to her, the complaint notes.
"We said all along the proviso was inartfully drafted," Wilson said in a statement. "While the proviso was not clear, we think the legislature's intent was, so now it's up to the University of South Carolina to address this matter in light of the General Assembly's position."
University officials did not immediately respond to a request for comment Tuesday afternoon.
Arguments over whether schools can make students wear masks have erupted in the state in recent weeks with the start of the fall semester, as coronavirus cases are soaring toward rates not seen since the height of the pandemic last winter.
A growing chorus is calling for state lawmakers to repeal a separate budget proviso that bars public school districts serving K-12 students from using appropriated funds to mandate masks. Among the measure's detractors are school boards, Democratic lawmakers, at least two Republican state senators and South Carolina Education Superintendent Molly Spearman.
Republican state leaders have resisted those calls. But Spearman, also an elected Republican, told reporters Tuesday the issue will likely be resolved in the courts if lawmakers don't reconvene soon.
Two of the state's largest school districts have already decided to require masks in buildings as most of South Carolina's 760,000 public school students start classes this week.
School boards for Charleston County and Richland One voted Monday in open defiance of the proviso, citing the highly contagious delta variant's effect on children as outbreaks spread among students and staff across the nine districts that began classes in the first two weeks of August.
The votes accompanied similar emergency ordinances put in place by Richland County and the capital city of Columbia, the latter of which Wilson has opined is "in conflict with state law and should either be rescinded or amended."
The proviso does not indicate what penalties districts in violation actually face, Spearman told reporters: "If you read the proviso, it is silent as far as any consequences."
The South Carolina Department of Health and Environmental Control had tracked 226 student cases and 61 employee cases statewide for the school year as of Sunday.
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Liu is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.