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Schools urged to seek legal counsel after SC governor's order to allow parental mask choice

The SC Department of Education says the Governor's decision caused 'hysteria' and likely wasn't one he was legally authorized to make.

COLUMBIA, S.C. — On Tuesday afternoon, Governor Henry McMaster issued an executive order which immediately stops most mask requirements in cities and counties around the state.

The order also seeks to bar so-called ‘vaccine passports’ in South Carolina that would force residents to provide proof they’ve been vaccinated to access certain services and allow parents to decide if their kids wear masks to school.

The question now is, can he legally do it?

When it comes to masks in schools, some law experts aren’t so sure.

RELATED: SC schools agency drops face mask policy, says governor incited 'hysteria'

“Our constitution only provides for one person to be in charge of our public schools, and that’s the elected office of the state superintendent, so, I don’t see the governor’s name next to that,” USC Professor of Law Derek Black said. “So, I think the big question here is ,where is this authority coming from that the governor’s asserting?”

In correspondence sent to district superintendents and shared with News 19, the State Department of Education (SCDE) said they, too, question the legality of the governor’s order, but, in the public interest, decided to rescind the face covering policy in schools with the exception of school buses, which is required by the federal government.

"After a thorough legal review of Executive Order 2021-23, the South Carolina Department of Education (SCDE) finds no legal grounds by which the Governor can set aside a policy and regulatory directive issued by another constitutional officer or constitutional board whose power is not derived from the state of emergency nor the Executive Branch but by the South Carolina Constitution and Code of Laws. This power is reserved solely for the South Carolina General Assembly. 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," the message said. "Rather than wage a debate over constitutionality that would pit elected officials, students, and families against one another, Superintendent (Molly) 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."

RELATED: DHEC releases opt-out form for masks in schools, says students should still wear coverings

The governor’s decision comes just weeks after he signed a bill into law to protect businesses, health entities and schools from legal action if they follow public health guidelines, according to Black.

“So, the idea is follow our health and safety rules and you can’t be sued for COVID. This was for our public schools, and that’s what makes the current executive order so strange. He is effectively telling them that they’re free to do something different than what our [S.C. Department of Health and Environmental Control] DHEC rules require, but if they do that, then they’re going to lose the immunity of the law that was just signed in a couple of weeks ago,” Black said. “So, what we now have is a situation where parents could try to sue. Whether or not they would actually be successful or not, I have no idea.”

RELATED: Gov. McMaster orders end to school, city mask mandates in South Carolina

In a statement to News 19, a spokesman for the governor’s office said, “To be very clear – the governor didn’t drop masks in schools. He has simply offered parents an opportunity to have a say in whether their children wear a mask in public schools, and we’re confident that he has the legal authority to do so.”

The SCDE is urging districts to now seek legal counsel on what liability protections they may have following the governor’s decision.

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