SC Superintendent pushes back but complies with Governor’s executive order

Updated: May. 12, 2021 at 8:08 PM EDT
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CHARLESTON, S.C. (WCSC) - State Superintendent Molly Spearman said she was reading the Governor’s most recent executive order to make masks options in schools for the first time last night when school leaders started reaching out to her with questions.

“To be honest with you it has caused much commotion and chaos across many of our schools and communities in South Carolina,” Spearman told reporters Thursday. “There was no time for school districts to prepare, or very little time, or any form for parents to fill out to sign.”

Nonetheless, Spearman announced Wednesday she has rescinded the mask requirement for schools after the Governor released his order saying she did so to keep the peace in the last few days of the school year.

“Rather than wage a debate over constitutionality that would pit elected officials, students, and families against one another, Superintendent Spearman has, effective immediately, rescinded the state face covering policy,” wrote the SC Department of Education in a leader to district leaders.

University of South Carolina law professor and education law expert, Derek Black, said Spearman does have executive authority over schools according to the state constitution.

“Our constitution provides that there is in fact an executive officer in the state that controls our schools and there is just one officer and that’s State Superintendent Molly Spearman,” he said.

According to a spokesperson for the Governor’s office, this executive order was written specifically as a direction to DHEC rather than an order for the Department of Education to act. The Governor’s team said this law was carefully reviewed by his legal team and is in line with state law.

The South Carolina Attorney General’s office deferred to the Governor’s legal team when asked about the constitutionality of the executive order.

However, while the Governor’s team insists everything was done by the letter of the law, Black fears this could put schools at risk.

“DHEC can pass general and uniform requirements over anything but that doesn’t give them authority over schools,” Black said. “If school districts were to follow the Governor’s suggestion that they allow students to opt-out it seems to me those schools would be giving up their immunity against lawsuits,” he said but cautioned that this is just his legal opinion.

Black and Spearman also pointed out that a few weeks ago McMaster signed a bill aimed at preventing people from suing businesses and other groups for contracting COVID-19 if they are following federal and state health guidelines.

“It’s a really confusing thing for school districts when you tell them the law says if you follow health guidelines you can’t be sued. But then the Governor, not through an act of law just an executive order, says hey you don’t have to wear those masks so does that mean they still have immunity? The answer is no, not by law,” Black said.

In addition to public health concerns, Spearman said she is concerned about the potential legal risks of removing the mask requirement. The South Carolina Department of Education has a form on their website allowing parents and legal guardians to “opt-out” of having their child wear a mask.

The form has a line saying the signee will “agree on behalf of myself and the student to hereby release the school, school district, South Carolina Department of Education (SCDE), and DHEC from any and all liability associated with the student not wearing a face covering.” But Spearman said she isn’t sure what legal risks will face districts if a masked child gets sick.

“There is a huge legal question here. I hope the waiver will cover districts, but honestly I think some real bright attorney might be able to wiggle through this,” she said.

DHEC Director Dr. Edward Simmer said he was consulted before the Governor released his executive order, but as a public health professional would’ve preferred if McMaster had waited.

“We are concerned of the impact on public health,” Simmer said. “If parents choose to unmask their children, that’s who they are putting at risk is other family members and others that child may come in contact with.”

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