The U.S. District Court in South Carolina has ruled against a request from Governor Henry McMaster and Attorney General Alan Wilson. They had requested a stay of Judge Mary Geiger Lewis’ Sept. 28 ruling, along with a temporary restraining order and preliminary injunction, that the state cannot enforce Proviso 1.108 which was included in the new budget passed by legislators.
The proviso prohibited local school districts from mandating face masks to lessen the spread of COVID-19.
McMaster and Wilson appealed her ruling to the 4th Circuit Court of Appeals contending “there is no private right of action for failure to accommodate claims under Title II and Section 504” of the Americans with Disability Act.”
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In early October, The Court of Appeals said it did not have standing to rule on the matter and sent it back to the district court.
In her Nov. 1 order, Judge Geiger wrote:
“Here, the Court need not spill significant ink regurgitating its detailed analysis in its Sept. 28, 2021, Order as to their right to bring an action for failure to accommodate under Title II and Section 504. … All that matters is Governor McMaster and AG Wilson are unable to meet the first factor regulating the issuance of a stay because their position is premised on a novel and legally unsupported position regarding private rights of action under Title II and Section 504.”
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On Nov. 2, McMaster and Wilson again filed an appeal with the Court of Appeals and requested the court issue an administrative stay pending its decision.
The court battle stems from a lawsuit filed in late August by the American Civil Liberties Union, Disability Rights South Carolina, Able South Carolina and several parents of children with disabilities. The suit claimed the proviso violates sections of the Americans with Disabilities Act, the Rehabilitation Act of 1973 and the American Rescue Plan Act.
The parents say their children suffer from disabilities that increase their risk of contracting COVID-19 or increase their risk of serious complications or death. The disabilities cited include asthma, Autism and weakened immune systems.
In the lawsuit, the plaintiffs said, “School districts with students who have disabilities . . . that make them more likely to contract and/or become severely ill from a COVID-19 infection have a legal obligation to ensure that those children can attend school with the knowledge that the school district has followed the recommended protocols to ensure their safety. By prohibiting any school from imposing a mask mandate, Proviso 1.108 interferes with a school’s ability to comply with its obligations under federal disability rights laws and illegally forces parents of children with underlying [health] conditions to choose between their child’s education and their child’s health and safety.”
Dana Lynn McIntyre is a Staff Reporter with The Augusta Press. You can reach her at dana@theaugustapress.com
