COLUMBIA, S.C. ― In recent weeks, several members of the media, the legislature and the public have inquired about the South Carolina Department of Health and Environmental Control’s authority to issue a statewide emergency order mandating masks in schools. DHEC’s position on this issue came after careful legal analysis of the governing statutes and extensive internal consideration by agency leadership and the DHEC board.
The emergency authority previously referenced allows DHEC to respond quickly to local situations or outbreaks where rapid action is necessary, and steps can be taken to prevent immediate, imminent danger to the local population.
The situation in each school district is different, and issuing a statewide order that applies equally to every school, that would be enforceable with the current proviso in place and that would withstand legal challenge is not currently feasible.
During the DHEC board meeting yesterday (Thursday, Sept. 9), agency director Dr. Edward Simmer elaborated on this issue directly. Click the video below to hear Dr. Simmer’s statements.
“We do have that authority,” Simmer said. “However, I think there are some challenges practically to using it. Certainly trying to do a statewide order would be very difficult, at best, because the situation at every school district is different and trying to write one order that would fit every school district would be, I think, next to impossible.
“I’ve talked with our team, and we don’t think there’s a good way to do a statewide order that really fits every school district.”
The second challenge, Simmer said, is enforcement.
“I think the proviso is pretty clear,” Simmer said. “Proviso 1.108 is very clear that we cannot use school district personnel or anyone funded with state funds to enforce a requirement to wear masks. Which then prompts the question, ‘Well, then, who would?,’ because obviously who’s mostly watching the children are the teachers, the principals and other people in the school, all of whom are funded with state funds.”
“I don’t believe it’s appropriate to write an order you can’t enforce.”
Should an outbreak in a school or school district warrant, DHEC may consider issuing a public health order for masks on a by-location basis. This would be a temporary action based on the latest evidence and the situation at the school or school district and with the intent to protect children, staff, and others from severe illness or even death due to COVID-19. However, because of the proviso, such an order could not be enforced by school employees.
“I think it’s possible (to do a localized order),” Simmer said. “We’ve not had a request for that at this point. But that’s something we’d have to visit at that time, whether a more localized order for a specific school district or even a specific school would have merit. But I think we’d still come down to the enforcement issue, and I still don’t know how we would enforce even a more localized order.
“That’s where we stand. Yes, we have the authority, but from a practical standpoint, if we can’t enforce the order, then it’s not a good idea to issue one.”
DHEC continues to advocate for the legislature to consider revising the proviso to allow individual school districts, superintendents, and principals to make decisions about requiring masks in consultation with local and state health professionals. The agency believes this approach, along with the vaccination of every eligible South Carolinian, will best protect children and others from COVID-19 and help keep children in school while maximizing parental choice.