South Carolina's AG Asks for Removal From ACLU's Mask Lawsuit, Says He Didn't Violate Laws

South Carolina's attorney general has asked to be removed from the American Civil Liberties Union's (ACLU) lawsuit against the state's mask mandate ban, saying he did not violate any laws, the Associated Press reported.

Attorney General Alan Wilson is among several South Carolina officials being sued by the ACLU on behalf of disability rights groups and parents of South Carolina children with disabilities. The suit alleges the mask mandate ban is in violation of the Americans With Disabilities Act and the Rehabilitation Act. But Wilson argued in a legal memo that he should not be named in the suit because "he played no part in any alleged violation of the statutes in question," the AP said.

Under the two acts, public schools cannot exclude students with disabilities or segregate them unnecessarily from their peers. Schools are also required to provide accommodations to allow students with disabilities to participate fully.

The ACLU says the mask mandate ban disproportionately affects students with underlying health conditions or disabilities, who are at a higher risk of becoming seriously ill from COVID-19.

For more reporting from the Associated Press, see below.

Attorney General Alan Wilson
South Carolina officials have been sued by the American Civil Liberties Union over a law banning school districts from issuing face mask mandates. Above, Attorney General Alan Wilson, one of those named in the suit, speaks during a press conference on January 22, 2020. Drew Angerer/Getty Images

In papers filed last week, attorneys for Governor Henry McMaster—a Republican who has said repeatedly that parents alone should decide if children wear masks in schools—argued that the ACLU and its clients "have not alleged, and they cannot reasonably or plausibly allege, that Governor McMaster acted with bad faith or gross misconduct."

The plaintiffs, they went on, "cannot simply litigate their policy preferences or run to court over their disagreements with decisions made by their representatives in the General Assembly."

The lawsuit percolates as South Carolina deals with a renewed COVID-19 surge, driven in part by the Delta variant and a vaccination rate of just under 50 percent of eligible residents. Intensive care units in both adult and children hospitals are full, and more than 750 deaths have been reported in the first half of September. The average for new cases reported daily is still around 4,500—a level surpassed only during the winter peak, before vaccines were widely available.

The resurgence has forced a number of schools and two entire districts back to online learning within a month of returning in person. Some districts and cities have disregarded the ban, moving forward with implementing their own requirements.

Such a move was taken this week by the state's second-largest school district, which on Tuesday voted to begin enforcing its own masking requirement, planning to use federal money to enforce the policy for its 48,000 students. Earlier this month, the state Supreme Court struck down the capital city of Columbia's school mask mandate for children too young to be vaccinated, following a lawsuit from Wilson.

Last month, the plaintiffs filed for a temporary restraining order blocking the law from being enforced, with attorneys arguing that state officials "are illegally forcing South Carolina families who have children with disabilities to choose between their child's education and their child's health and safety."

The defendants filed individual briefs opposing the restraining order request. McMaster's attorneys noted that the governor "has consistently encouraged South Carolinians to heed applicable public health guidance, which has included wearing masks in public settings where it is not possible to practice social distancing, and he has encouraged eligible and willing individuals to get vaccinated."

Attorneys for several school districts argued that the injunction request "does not show the existence of immediate and irreparable injury regarding the School Board Defendants' educational programs." In a separate brief, attorneys wrote that Education Superintendent Molly Spearman "takes no substantive position on the issues" and "will continue to properly discharge the duties" of her office.

In a response, ACLU attorneys wrote that, in their filings, the defendants "who do engage with the substance of the arguments—most notably the Governor and Attorney General—confirm that Plaintiffs are likely to succeed on the merits."

McMaster, who has called the lawsuit's arguments "totally inaccurate," has urged South Carolinians to get vaccinated against COVID-19, though children under age 12 are not yet eligible.

"All we can do about that is to get the information to the people, tell them what works, what doesn't work, and let them make the best decision for their own families, their own lives," McMaster said Tuesday.

South Carolina Mask Mandate Lawsuit
South Carolina Education Superintendent Molly Spearman speaks during a news conference on April 13. Spearman said that the coronavirus's Delta variant appears to be spreading quickly in children and that more must be done to keep students safe and schools open. Jeffrey Collins, File/AP Photo