Disability rights groups and parents of children with disabilities filed a federal lawsuit today challenging a South Carolina law that bans school districts from imposing mask mandates in schools. The parents and disability rights groups represent students whose disability, including underlying health conditions, makes them particularly susceptible to severe illness from COVID-19, and argue that the ban on mask mandates effectively excludes these students from public schools, in violation of the Americans with Disabilities Act and the Rehabilitation Act.
The groups and parents are represented by the American Civil Liberties Union, ACLU of South Carolina, South Carolina Appleseed Legal Justice Center, Disability Rights South Carolina, Wyche, P.A., and Arnold & Porter.
In June 2021, the South Carolina legislature tacked a provision to the general appropriations bill that barred school districts from using state funds to require face masks in schools, and the state Department of Education subsequently directed school districts that they are prohibited from requiring students or employees to wear a mask in educational facilities. The lawsuit filed today argues that the enforcement of this provision places all students, teachers, staff and their families at risk, but particularly targets children with disabilities that put them at higher risk for severe illness, lingering disabilities, or even death due to COVID-19.
“Prohibiting schools from taking reasonable steps to protect the health of their students forces parents to make an impossible choice: their child’s education or their child’s health,” said Susan Mizner, director of the ACLU’s Disability Rights Program. “This is a disability rights issue. Students with health conditions or disabilities that make them vulnerable to COVID have a right to attend school without endangering their health or safety. Schools who have children with these conditions have legal obligations under federal disability rights laws.”
Under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, public schools cannot exclude students with disabilities, deny them equal access to their education, or segregate them unnecessarily, and they are obligated to provide reasonable modifications to policies, practices, and procedures in order to give students with disabilities an equal opportunity to benefit from their public education.
The COVID-19 pandemic has not absolved South Carolina schools from these requirements, and South Carolina officials cannot waive these obligations for them.
The lawsuit highlights the devastating and potentially deadly consequences of mask mandate prohibitions in South Carolina. In Pickens County, where school opened earlier than in most other parts of the state, 142 students and 28 staff tested positive for COVID-19, forcing the school district to revert to all virtual classes after just nine days of in-person instruction. After one week of school (August 16-20), the Dorchester County School District 2 is reporting 324 infected students and 42 infected staff.
Following the outbreak, state Superintendent of Education Molly Spearman issued a memo reminding school districts of their obligations under federal law and indicating that mask mandates may be necessary to protect students with disabilities.
The lawsuit was filed on behalf of Disability Rights South Carolina, Able South Carolina, and nine parents of minor children with disabilities whose health could be at risk due to the enforcement of this provision. The groups are asking the court to declare that the provision violates the ADA and Section 504 of the Rehabilitation Act and order the state to allow school districts to adopt mask mandates for their students and staff. The defendants in this lawsuit include Gov. Henry McMaster, state Attorney General Alan Wilson, state Superintendent of Education Molly Spearman, and the school boards of Greenville, Horry, Lexington, Oconee, and Pickens counties.
Below is additional comment from:
Allen Chaney, Director of Legal Advocacy at the ACLU of South Carolina: “South Carolina’s prohibition on mask mandates requires school districts to defy their obligations under federal law and precludes them from following the official guidance from the CDC or SCDHEC. It is illegal, dangerous, and irresponsible.”
Beth Franco, Executive Director of Disability Rights South Carolina: “When it comes to public education, students with disabilities and families should not have to make a choice between health and having an equal opportunity to obtain an appropriate education in person. Our school districts should be able to determine the need for appropriate mask mandates and must be able to comply with Federal laws that protect students with disabilities. Let’s not fail these students after all they have been though with this pandemic.”
Kimberly Tissot, President & CEO of Able South Carolina: “After 31 years of the Americans with Disabilities Act and 48 years of the Rehabilitation Act of 1973, it is past time for students and adults with disabilities to be recognized and properly accommodated so we can be fully included in society. As a person with a disability and the President & CEO of Able SC, we need our state to do its part to enforce disability rights laws.”
Jennifer Rainville, Education Policy Attorney at South Carolina Appleseed Legal Justice Center: “Unfortunately, we have seen the devastating effects of children retuning to schools without masks in Pickens. Working parents are caught in the impossible position of figuring out how to protect and educate their child while maintaining their employment. Many must decide whether they need to keep their children home at the expense of work or risk keeping their children in schools where safety is not being prioritized. The decision to ignore basic safety measures has broad implications not only for children in the classroom, but every person connected to the school community.”
Rita Bolt Barker, Member of Wyche, P.A.: “Prohibiting our schools from enforcing safety protocols undermines the rights of the most vulnerable among us. We are committed to ensuring our children and teachers can learn and work in an environment that doesn’t ask them to choose between their health and their access to opportunities.”
A copy of the complaint is here.
