Lawsuit argues South Carolina faculty masks mandate ban violates Individuals with Disabilities Act

COLUMBIA, SC (WIS) – Disability rights groups and several parents from South Carolina say their children will not be protected due to the state’s ban on masking in school.

Now they are suing heads of state and several school authorities to prevent enforcement of this interim law.

Last week, the South Carolina ACLU filed a lawsuit in the United States District Court for the District of South Carolina in Columbia on behalf of two disability organizations and nine parents of children with disabilities, including asthma and autism.

At the center of the lawsuit is the one-year law set down in the state budget, a so-called reservation that forbids school districts to enforce masking requirements at the risk of these districts losing their state funding.

Among the plaintiffs is Able South Carolina, a Colombia-based nonprofit advocating for disability rights and equality, and offering individual benefits.

Kimberly Tissot, President and CEO of Able South Carolina, said her main concern is the students whose disabilities prevent them from wearing masks or providing social distancing. The CDC and medical studies have found that some people with disabilities are at higher risk of infection and serious illness from COVID.

“I’ve seen comments, ‘Well, why don’t the children with disabilities stay home?’ Well, that is not effective, and it is not in their right, so they should be able to go to school like everyone else and that school environment should be safe for them too, “Tissot said.

The lawsuit alleges that the mask mandate reservation violates the Americans with Disabilities Act, which prohibits discrimination on the basis of disability.

“By taking a full safeguard off the table, the law is effectively preventing schools from meeting their ADA requirements for students like our plaintiffs,” said Allen Chaney, director of legal representation for the ACLU in South Carolina.

Governor Henry McMaster, South Carolina Attorney General Alan Wilson, and Superintendent of Education Molly Spearman are listed as defendants, along with the Greenville County School Board, Horry County School Board, Lexington One School Board, Oconee County School Board, Dorchester Two School Board, Charleston County School Board, and Pickens County School Board. These defendants have until September 10 to respond to the lawsuit, according to Chaney.

McMaster has repeatedly reiterated that he believes the decision to wear a mask is an individual choice.

“It would be wrong for a school district or government to tell parents that their child must wear a mask if the parents think it is not good for the child,” the governor told reporters on Tuesday.

However, Tissot said that not enough families are choosing to mask themselves, and that choice puts other students at risk.

“It protects other people, not necessarily you, and we really need to remember that not every student in South Carolina has healthy immune systems,” said Tissot. “There are children with a variety of disabilities, and again, they may not be able to wear a mask to protect themselves.”

This lawsuit is not the only matter in the hands of the state regarding the mask mandate reservation.

On Monday, the US Department of Education announced that it had initiated a civil rights investigation into South Carolina law and similar laws in four other states and its impact on students with disabilities.

On Tuesday, the South Carolina Supreme Court heard two cases regarding the reservation, although the court has not yet released any rulings from them.

Chaney said the South Carolina ACLU will be closely monitoring these rulings.

“The court could resolve the case in a way that makes our case unnecessary,” said Chaney. “For example, the court could reject budget rule 1.108 for constitutional reasons and say that rule is unenforceable. If it did, schools would be able to meet their ADA requirements again and our lawsuit would no longer be required. That is not the only way the court could resolve this case, so of course the devil will be in the details. “

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