Parents who brought the lawsuit claim that the order “unlawfully forces parents … to choose between their child’s education and their child’s health and safety.” The parents claim the provision also violates two federal laws: the Americans with Disabilities Act and the Rehabilitation Act.
In September, a federal district court judge ruled that South Carolina could not try to ban districts from having mask requirements. The move came in a lawsuit brought on behalf of disability rights groups by the American Civil Liberties Union against heads of state including McMaster and South Carolina Attorney General Alan Wilson .
W. Grayson Lambert, an attorney for the state, told the 4th Circuit panel during the 45-minute oral argument on Thursday that the conditional clause was not in fact a ban on mask warrants, and that the districts schools could use local and state funds to promulgate them with reservations.
More than 10 South Carolina school districts, which include approximately 10,000 children with disabilities, have imposed mask warrants at one point or another, according to lawyers involved in the case.
Judge James Wynn Jr., a person appointed by former President Barack Obama, noted during Thursday’s arguments that despite the reserve’s fiscal stance, the state superintendent specifically said the measure prohibited warrants mask. Wynn also asked “who in the world” would believe this wasn’t a ban on mask warrants, if heads of state threatened to withhold state funding.
“It’s easy to scramble – and I could suggest the press scrambled it,” said Judge Paul Niemeyer, appointed by George HW Bush. “The condition is simply, ‘Don’t spend state money on this function.’ “
Wynn and Lambert have been back and forth several times on the issue of fines for non-compliant schools and potential discrimination against students with disabilities. Wynn referred to other protected classes, such as race and gender, to ask why the complaint filed by students with disabilities does not also constitute discrimination.
Lambert responded that ordering a state to comply with federal law and telling a state how to comply are two different concepts. And Niemeyer insisted that the denial of funds to the offending districts could not be considered discrimination.
An advocate for students with disabilities, John Freedman, argued that the law requires public entities to make reasonable changes to ensure that people with disabilities can have equal access to programs or services. He said a request for a school to have a mask warrant could be a “plausible accommodation.”
“Your clients aren’t asking them to put a mask warrant on schools – they’re just asking for a barrier to be removed,” Wynn told Freedman. “It would allow schools to do it. It is a reasonable thing.
Judges made no immediate ruling, but Niemeyer appeared ready to side with the state, while Wynn was on the side of students with disabilities.
The third panel judge, appointed by Obama, Stephanie Thacker, looks likely to be the deciding vote in the case. She was quieter during arguments, offering no clear idea of her likely vote on the dispute.
Last month, the court denied a stay requested by South Carolina officials that would have allowed them to apply the budget provision while the appeal was pending. The court order said Niemeyer would have granted the stay, but he was outvoted by Wynn and Thacker.
Josh Gerstein contributed to this report.