Schools & School Boards – University Mask Mandate – Universal – Vaccination Status

In Proviso 117.190 of the 2021-2022 Appropriations Act, entitled “Masks at Higher Education Facilities,” the General Assembly said, “A public institution of higher learning, including a technical college, may not use any funds appropriated or authorized pursuant to this act to require that its students have received the COVID-19 vaccination in order to be present at the institution’s facilities without being required to wear a facemask.” The proviso clearly prevents state-supported institutions of higher education from using funds from the 2021-2022 appropriations to fund efforts requiring only unvaccinated individuals to wear facemasks. Nothing in the title or text of the proviso prohibits a universal mask mandate at a public institution of higher learning that applies to all students, faculty, and staff equally, whether vaccinated or unvaccinated.

In our original jurisdiction, we declare the terms of Proviso 117-190 clearly and unambiguously prohibit a state-supported institution of higher education from discriminating against unvaccinated students, faculty and staff by requiring them to wear masks. The proviso does not prohibit a universal mask mandate.

Even though the defendant-university has withdrawn its mask mandate, since it did so based on a letter from the Attorney General, this controversy is clearly justiciable.

Contrary to the Attorney General’s position that this matter presents a political question, we hold this action involves solely a question of statutory interpretation.

The General Assembly was clearly capable of prohibiting all mask mandates: “No school district, or any of its schools may use any funds appropriated or authorized pursuant to this act to require that its students and/or employees wear a facemask at any of its education facilities.” Proviso 1.108. The fact that Proviso 117.190 uses different language than Proviso 1.108 leaves little doubt that Proviso 117.190 was not intended to prohibit all mask mandates at public institutions of higher education, but only, as its terms specifically provide, mask mandates for the unvaccinated.

Creswick v. University of South Carolina (Lawyers Weekly No. 010-050-21, 6 pp.) (Per curiam) Richard Harpootlian and Christopher Phillip Kenney for petitioner; Vordman Carlisle Trawick, Robert Stepp, Alan McCrory Wilson, Robert Cook and Emory Smith for respondents. S.C. S. Ct.