Gov. McMaster’s mask order sows ‘chaos,’ invites lawsuits, SC schools chief says

South Carolina schools chief Molly Spearman said Wednesday she was concerned that dropping masking requirements for students and staff across the state, as the governor ordered Tuesday, may create serious legal liability for districts.

Her agency, which on Wednesday morning rescinded its requirement that students and school personnel wear facial coverings, effective immediately, also issued a statement calling out Gov. Henry McMaster for “inciting hysteria” and “sowing division” with his order and questioned its timing and constitutionality.

In an email to district superintendents, Department of Education spokesman Ryan Brown said that while the agency’s attorneys believe there are no legal grounds for McMaster’s order, Spearman had nonetheless decided to lift the agency’s masking policy because it was no longer enforceable.

“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pit elected officials, students, and families against one another, Superintendent Spearman has, effective immediately, rescinded the state face covering policy with the exception of the school bus requirement that is now required by the federal government,” Brown wrote.

He said the agency believed the governor surely understood that his order lacked legal teeth, but had issued it anyway to create a stir.

“The Governor thoroughly understands the rule of law and surely recognizes this but has been successful in his mission of circumventing public health guidance by inciting hysteria and sowing division in the waning days of the school year,” Brown wrote to superintendents.

The state superintendent’s comments came less than 24 hours after McMaster issued an executive order preventing school districts and local governments from requiring students or residents to wear facial coverings.

The state Department of Education, citing U.S. Centers for Disease Control and Prevention guidance, previously had required students and staff in South Carolina public schools to wear a face covering upon entering a school building, while moving through hallways, during pickup and drop-off and when social distancing is not possible.

The CDC advises schools providing in-person instruction to require and prioritize the “universal and correct use of masks” and physical distancing to the greatest extent possible, among multiple other COVID-19 prevention strategies.

McMaster justified his executive order Tuesday saying that “schools are some of the safest places when it comes to COVID-19” and asserting that children should not be forced to wear facial coverings against their parents’ wishes.

“Whether a child wears a mask in school is a decision that should be left only to a student’s parents,” the governor said in a statement announcing the order.

While research studies, including one conducted by a pediatrician at the Medical University of South Carolina, have found minimal COVID-19 spread within schools, they were carried out in districts with strict masking policies and other coronavirus mitigation measures in place.

In the wake of the governor’s order, which caught districts off guard, many, including Richland 1 and Richland 2, sent messages to parents late Tuesday reiterating that masks would remain mandatory, at least until state health and education officials weighed in.

Other districts, like Spartanburg 4, moved quickly to implement McMaster’s directive.

“Effective immediately, masks will be optional for faculty, staff, and students,” Spartanburg 4 officials posted on the district’s Facebook page late Tuesday. “Students/Parents will not be required to submit any form or complete any documentation indicating their preference regarding the wearing of masks. It would be impractical to monitor who has turned in a form and who hasn’t.”

Spearman, who said McMaster had not consulted her about the order before issuing it, said the directive created chaos in school districts across the state Wednesday morning.

“Unfortunately, due to the late release and it being after school had closed for the day, there was no time for school districts to prepare — or very little time — and there was no (opt out) form that had been sent out for parents to be ready to sign,” she said Wednesday during a briefing with reporters.

The governor’s order directed state health and education officials to develop and distribute a form that parents or guardians could sign if they wished to opt their children out of school masking requirements. By Wednesday morning, the S.C. Department of Health and Environmental Control had created such a form and posted it online.

The form advises parents that both DHEC and the U.S. Centers for Disease Control and Prevention recommend wearing face coverings to slow the spread of COVID-19 based on scientific evidence and research studies, and that failing to do so may increase a child’s risk of contracting and spreading the virus.

Parents who sign the opt out form agree to release the school, district and state Department of Education from any liability.

They also must acknowledge that children will still be required to wear masks on school buses, as is required by a federal executive order signed in early February.

Spearman said she hoped the forms would offer some legal protection if education officials are sued over the rescinded mask requirement, but said she and many local superintendents are concerned about their potential liability.

“The form now is not really about just the mask, it’s about the liability,” she said. “This is all about the liability that the district would incur and the taxpayers of South Carolina would have to help fund if there are lawsuits from children who are getting sick.”

A bill signed into law two weeks ago gives businesses, health care providers and government entities legal protection from lawsuits related to exposure to or contraction of the coronavirus as long as those entities follow public health guidance.

However, with schools dropping mask requirements in direct conflict with DHEC’s recommended COVID-19 measures, both health and education officials said they weren’t sure whether districts would assume legal responsibility for any COVID-related lawsuits that result.

“I hope that the waiver will cover districts, but honestly, I think that some real bright attorney might be able to wiggle through this,” Spearman said. “That was one of, and continues to be one of, the No. 1 concerns that districts are facing today.”

State health and education officials are urging districts to continue following DHEC’s masking guidance, which has not changed, through at least the end of the school year, even though they’re no longer required to.

“Our hope is that schools and parents will continue to do the right thing for our children and require them to wear masks,” DHEC Director Edward Simmer said Wednesday. “We recognize that the governor’s order gives parents the option to opt out, but I think we’ll find that many parents recognize the importance of masks in preventing the spread of this terrible disease.”

Spearman said most district superintendents she’d spoken to are planning to continue requiring that masks be worn by staff and students, but conceded that compliance would not be universal.

“There will be parents and some communities more than others that will sign the opt out form,” she said. “So it puts our classroom teachers and those school personnel in a very precarious situation.”

The state superintendent said she’d already fielded numerous calls from parents who have requested a return to virtual instruction because they fear sending their kids to school with unmasked children.

Simmer said that while he wished McMaster had not issued his masking directive when he did — just weeks from the end of the school year — and even told him as much beforehand, he still respected the governor’s decision and would comply with it.

“I think the big difference for us would have been the timing,” he said. “We think that the mask mandates should have remained in place for another month or two, from a public health standpoint, to get the maximum benefit and to ensure that we had the opportunity to get more folks vaccinated and get case rates lower.”

Simmer said he was most concerned that unmasked children might contract the virus and spread it to older unvaccinated family members who are more susceptible to severe coronavirus complications.

“I think that’s the greatest risk going forward,” he said. “If parents choose to unmask their children, that’s who they’re really putting at risk.”