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Columbia school mask mandate violates state law, governor's office says

The governor, an opponent of school mask mandates, thinks what the mayor is doing isn't legal.

COLUMBIA, S.C. — The South Carolina governor's office is already saying the City of Columbia's proposed school masks mandate is illegal, claiming it violates a parent's rights. 

Wednesday afternoon Columbia Mayor Steve Benjamin announced a state of emergency and an ordinance that requires masks for students in elementary, middle schools, and daycares in the city. Benjamin said his goal is to protect children since they cannot be vaccinated. 

RELATED: Columbia mayor announces state of emergency, mask mandate for city schools

"Let's protect our babies, let's protect the men and women who educate them," he said.

The Columbia City Council will vote on the proposal at a special called meeting Thursday morning. Benjamin believes they'll pass the measure. 

But already some question if it's legal. A proviso in the state budget passed in June specifically barred any school district from passing a mask mandate, stating no state funding could go to enforcing or promoting a mask order. If a district went against that, they could lose state money.

RELATED: 'Our ICU is full of children with respiratory viruses': Health officials urge routine vaccinations during Immunization Awareness Week

Gov. Henry McMaster, who's been a strong opponent of mandating masks in schools, said in a TV interview over the weekend masks inhibit a student's ability to learn. 

"This is another attempt to force children to wear masks in schools without a bit of consideration for a parent’s right to make that decision," McMaster spokesman Brian Symmes said after Benjamin's announcement. "State law prohibits mask mandates in public schools, and the city’s ordinance would require teachers and administrators to violate state law." 

RELATED: Gov. McMaster says there will be no more mask mandates for SC

In addition to the proviso, back in May, McMaster issued an executive order ending all city and state mask mandates. 

But Benjamin disagrees, and he believes what he's proposing is within the city's authority. State law does allow cities to enact measures to protect health and safety. 

"Under state law, I have the authority to declare the emergency here in the city," Mayor Benjamin said. 

According to Thomas Crocker, a Constitutional law professor at the University of South Carolina, there is a conflict of law, but he believes the mayor and council can issue an emergency mask order. 

“The governor is seeking to prohibit mask mandates, and the mayor is seeking to implement them," Crocker said. "McMaster removed by executive order, removed the ability for a mayor to rely on the state declaration of emergency, as a legal basis for a mask mandate. But it doesn't say anything about the mayor's own independent municipal powers to declare a municipal-state of emergency, in order to do a mass mandate."

He also said he thinks he can get around the proviso by the city providing the masks, which wouldn't use state funds. 

 “There’s some room in the wording of that proviso that speaks specifically to state appropriated funds, obviously a significant amount of funding is available through local taxes as well as the federal taxes," Benjamin said. "I think there’s some room for the school districts, it's important, however, for us, that not be a concern. We’re going to make the masks available through the city, so any appropriation shouldn’t be a concern.”

Benjamin said he spoke to South Carolina Attorney General Alan Wilson, among others, before making his decision. Wilson--who earlier this week weighed in on masks for colleges--is waiting to see what the council ultimately decides before giving an opinion. 

"We have attorneys looking at what we know so far and will have a final answer once something is passed, we have all the facts, and have had time to do the necessary research and analysis," Wilson spokesperson Robert Kittle said. 

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