South Carolina Mask War: Dick Harpootlian Takes Attorney General Alan Wilson To The Supreme Court

The ongoing battle over mask mandates in the state of South Carolina in response to the delta variant of the coronavirus jumped to a higher energy level this week. On Thursday afternoon (August 5, 2021), State Senator Dick Harpootlian filed a motion before the S.C. supreme court seeking an emergency hearing to determine whether the state’s “flagship” institution of higher learning could impose such an edict on students, faculty and staff this fall.

Harpootlian’s action targeted the University of South Carolina – which recently introduced (and then rescinded) a mask mandate – and the state’s attorney general, Alan Wilson, whose opinion on the matter prompted the school’s change of course.

“The simplicity of this dispute is underscored only by its gravity,” Harpootlian wrote in his pleading, which was filed on behalf of Richard J. Creswick, a professor of astrophysics at the Columbia, S.C.-based school. “The coronavirus pandemic is rising again, this time with a new, more contagious strain of the disease capable of breaking through otherwise highly efficacious vaccines and being spread by vaccinated and unvaccinated alike.”

According to Harpootlian, South Carolina responded to new public health guidance from the federal government “by enacting a universal masking policy for classes starting on August 19, 2021 — a measure that would keep everyone inside campus buildings safe by preventing transmission of the Delta variant.”

Throwing a sharp political jab, Harpootlian asked the court to “end this manufactured legal controversy and allow the University to follow public health guidance free from the threat of legal coercion by the state’s top lawyer.”

As for Wilson, Harpootlian claimed his opinion is what created the controversy – accusing him of not engaging in “serious lawyering” and saying his interpretation of the S.C. General Assembly’s Covid-19-related regulations showed “no respect for the law or the idea that words and laws have meaning.”

Fighting words …

A week ago South Carolina announced it was imposing a mask mandate “in all classrooms and indoor spaces” during the fall semester. “This mandate must be followed regardless of vaccination status,” an email from one school official noted.

The announcement of South Carolina’s policy prompted legislative apoplexy – with multiple members of the S.C. General Assembly condemning the school for “blatantly disregarding” state law, which ostensibly banned mask mandates and mandatory Covid-19 vaccinations effective July 1, 2021.

Wilson sided with lawmakers on the issue. On Monday, the attorney general sent a letter to interim South Carolina president, Harris Pastides reminding him “the legislature possesses the ultimate authority over health policy and has prohibited mandatory vaccinations and masking at schools and colleges, siding with a student’s liberty interests.”

Wilson is absolutely correct in his assessment lawmakers possess the ultimate authority in this matter. However, they have not exercised their authority decisively. Or clearly.

Rather than address the issue of mask mandates or “vaccine passports” via permanent law, lawmakers instead chose to adopt a trio of “inartful” temporary provisos within the fiscal year 2021-2022 state budget. Unfortunately, the specific wording of these provisos – and their ability to be enforced – remains murky at best.

“The wording of (these) regulations veers in a most undisciplined manner from confusing and obtuse in some places to narrow and needlessly specific in others,” I noted in a post on this debate earlier this week.

One proviso in particular, 117-190, holds that any “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.”

According to Harpootlian’s filing, this statute “prohibits unvaccinated persons from being singled out to wear a mask on campus” – but does not “prohibit all masking.”

Wilson determined the clear “intent of the legislature” was to ban mask mandates and vaccine passports – and I agree with him. However, even Wilson acknowledged lawmakers’ attempt to commit these intentions to paper was “ambiguous” and “inartfully worded.”

Nonetheless, South Carolina backed down from its proposal upon receiving Wilson’s letter – like the College of Charleston did in June when Wilson shot down their attempt to impose Covid-19 vaccine requirements.

So … did Wilson accurately interpret the intent of the S.C. General Assembly? Absolutely. In addition to the swift condemnation South Carolina’s mask mandate received from multiple rank-and-file lawmakers, I have spoken with several legislative leaders over the past week on this issue. These leaders told me in no uncertain terms that not only was it their objective to ban mask mandates and vaccine passports, but they were under the impression they had already done so.

Unfortunately for these leaders, laws are not enforced on the basis of what politicians say about them after the fact. Or at least they shouldn’t be. So while Wilson accurately interpreted legislative intent, it seems to me Harpootlian has an eminently winnable case based on the law itself.

Still, Harpootlian – who cast an “aye” vote on the budget containing these “inartful” provisos, incidentally – has failed to pick up one key gauntlet laid down for him by the attorney general.

In a letter to Harpootlian earlier this week, Wilson implored the veteran trial lawyer to undertake an “easy fix” to their dispute – “one which avoids vitriolic attacks.”

“You are an influential senator and a persuasive advocate,” Wilson wrote to Harpootlian. “If your view of (the) legislative intent is correct … it should be a simple issue for you to propose and push through to enactment a clarifying amendment to reflect what you perceive as the true intent of the General Assembly.”

“This office did not create the problem,” Wilson concluded, once again inviting Harpootlian to “seek a clarifying amendment … when the General Assembly returns in September.”

Will lawmakers do that?

We shall see. As previously reported, many medical experts believe the delta variant of the coronavirus will have run its course by then … but if not, expect this issue to continue to stoke division across the state (and the country).

In the meantime, can the supreme court be trusted to judge this issue fairly? I believe that’s a good question based on its own history on these issues …