Disability Rights South Carolina v. Henry McMaster ( 2022 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-2070
DISABILITY RIGHTS SOUTH CAROLINA; ABLE SOUTH CAROLINA;
AMANDA MCDOUGALD SCOTT, individually and on behalf of P.S., a minor;
MICHELLE FINNEY, individually and on behalf of M.F., a minor; LYUDMYLA
TSYKALOVA, individually and on behalf of M.A., a minor; EMILY POETZ,
individually and on behalf of L.P., a minor; SAMANTHA BOEVERS, individually
and on behalf of P.B., a minor; TIMICIA GRANT, individually and on behalf of
E.G., a minor; CHRISTINE COPELAND, individually and on behalf of L.C., a
minor; HEATHER PRICE, individually and on behalf of H.P., a minor; CATHY
LITTLETON, individually and on behalf of Q.L., a minor,
Plaintiffs - Appellees,
v.
HENRY DARGAN MCMASTER, in his official capacity as Governor of South
Carolina; ALAN WILSON, in his official capacity as Attorney General of South
Carolina,
Defendants - Appellants,
and
MOLLY SPEARMAN, in her official capacity as State Superintendent of Education;
GREENVILLE COUNTY SCHOOL DISTRICT; HORRY COUNTY SCHOOL
DISTRICT; LEXINGTON COUNTY SCHOOL DISTRICT ONE; OCONEE
COUNTY SCHOOL DISTRICT; DORCHESTER COUNTY SCHOOL DISTRICT
TWO; CHARLESTON COUNTY SCHOOL DISTRICT; PICKENS COUNTY
SCHOOL DISTRICT,
Defendants.
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AMERICAN ACADEMY OF PEDIATRICS; SOUTH CAROLINA CHAPTER OF
AMERICAN ACADEMY OF PEDIATRICS; UNITED STATES OF AMERICA,
Amici Supporting Appellees.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Mary G. Lewis, District Judge. (3:21-cv-02728-MGL)
Argued: December 9, 2021 Decided: January 25, 2022
Before NIEMEYER, WYNN, and THACKER, Circuit Judges.
Vacated in part, remanded with instructions by published opinion. Judge Thacker wrote
the opinion, in which Judge Niemeyer joined. Judge Wynn wrote a dissenting opinion.
ARGUED: William Grayson Lambert, OFFICE OF THE GOVERNOR OF SOUTH
CAROLINA, Columbia, South Carolina, for Appellants. John A. Freedman, ARNOLD &
PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellees. ON BRIEF: Alan
Wilson, Attorney General, Robert D. Cook, Solicitor General, J. Emory Smith, Jr., Deputy
Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellant Attorney General Wilson. Thomas A.
Limehouse, Jr., Chief Legal Counsel, Michael G. Shedd, Deputy Legal Counsel, OFFICE
OF THE GOVERNOR OF SOUTH CAROLINA, Columbia, South Carolina, for
Appellant Governor McMaster. David Allen Chaney Jr., AMERICAN CIVIL LIBERTIES
UNION OF SOUTH CAROLINA, Charleston, South Carolina; Adam Protheroe, SOUTH
CAROLINA APPLESEED LEGAL JUSTICE CENTER, Columbia, South Carolina; B.
Randall Dong, Anna Maria Conner, Amanda C. Hess, DISABILITY RIGHTS SOUTH
CAROLINA, Columbia, South Carolina; Rita Bolt Barker, WYCHE, P.A., Greenville,
South Carolina; Elisabeth S. Theodore, Anthony J. Franze, Tara Williamson, ARNOLD &
PORTER KAYE SCHOLER LLP, Washington, D.C.; Louise Melling, Jennesa Calvo
Friedman, New York, New York, Susan Mizner, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, San Francisco, California, for Appellees. Jeffrey B. Dubner,
Jessica Anne Morton, Samara M. Spence, Sean A. Lev, DEMOCRACY FORWARD
FOUNDATION, Washington, D.C., for Amici South Carolina Chapter of American
Academy of Pediatrics and American Academy of Pediatrics. Kristen Clarke, Assistant
Attorney General, Bonnie I. Robin-Vergeer, Alisa C. Philo, Sydney A.R. Foster, Appellate
Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE,
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Washington, D.C.; Elizabeth M. Brown, General Counsel, Francisco Lopez, Mary
Rohmiller, Office of the General Counsel, UNITED STATES DEPARTMENT OF
EDUCATION, Washington, D.C.; M. Rhett DeHart, Acting United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for
Amicus United States.
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THACKER, Circuit Judge:
The South Carolina legislature included a provision in the South Carolina state
budget that prohibits school districts from using appropriated funds to impose mask
mandates. Nine parents of students with disabilities who attend South Carolina public
schools and two disability advocacy organizations filed suit against seven school districts,
the state superintendent of education, the governor, and the attorney general to challenge
this law. The district court granted a preliminary injunction enjoining the law’s
enforcement, and the governor and the attorney general appealed.
Because we conclude that the parents and the disability advocacy organizations lack
standing to sue the governor and the attorney general, we vacate the district court’s order
granting the preliminary injunction as to those defendants and remand with instructions to
dismiss them from this case.
I.
In the appropriations act for the 2021–2022 fiscal year, the South Carolina General
Assembly included a budget proviso that precludes primary and secondary schools’ use of
appropriated funds to impose mask mandates for students and staff:
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. This prohibition extends to the
announcement or enforcement of any such policy.
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Act of June 21, 2021, pt. IB, § 1.108, 2021 S.C. Acts 1, 256 (the “Proviso”); see J.A. 144. 1
For the school year immediately preceding the Proviso’s enactment -- that is, the
2020–2021 school year -- the South Carolina Department of Education instituted a policy
“requiring face coverings to be worn on school buses and within public school facilities.”
S.C. Dep’t of Educ. Face Covering Guidelines for K-12 Public Schools (Aug. 3, 2020),
https://ed.sc.gov/state-board/state-board-of-education/additional-resources/south-carolina
-department-of-education-face-covering-guidelines-for-k-12-public-schools/. Shortly after
the Proviso was ratified, however, South Carolina Superintendent of Education Molly M.
Spearman (“Spearman”) issued a memorandum to the superintendents of local school
districts that explained, “The South Carolina Department of Education . . . interprets the
[Proviso] to mean that school districts are prohibited from requiring students and
employees to wear a facemask while in any of its educational facilities for the 2021–2022
school year. . . . [D]istricts may not create or enforce any policy[] which would require the
wearing of face coverings.” J.A. 146.
Despite the Proviso and Spearman’s interpretation of it, some school districts
continued to follow universal masking requirements, consistent with medical guidance
from the federal Centers for Disease Control and Prevention. In response, South Carolina
Attorney General Alan Wilson (“Wilson”) filed suit against the City of Columbia, South
Carolina, asserting that its ordinances requiring masks to be worn in primary and secondary
schools violated the Proviso. See Wilson ex rel. State v. City of Columbia, 863 S.E.2d 4561
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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(S.C. 2021). The Supreme Court of South Carolina held that the Proviso was a valid
exercise of the South Carolina General Assembly’s legislative power and struck down the
ordinances as inconsistent with the Proviso because “the enforcement provisions in the . . .
ordinances make clear that school personnel -- paid at least in part with ‘funds appropriated
or authorized pursuant to the [2021–2022 Appropriations Act]’ -- are responsible for
enforcing the . . . mask mandate.” Id. at 461, 462–63. The court nonetheless left open “the
possibility that a local government could impose a mask mandate without contravening
[the Proviso].” Id. at 461.
Thereafter, a local school district, Richland County School District Two, which had
not itself imposed a mask mandate but was subject to the ordinances struck down in Wilson,
also filed suit challenging the Proviso. See Richland Cnty. Sch. Dist. 2 v. Lucas, 862 S.E.2d
920 (S.C. 2021). At issue in Richland was whether the Proviso prevented the school district
“from (1) apportioning its budget so that any mask requirement is funded by federal or
local funds, (2) functionally announcing and enforcing a mask requirement without using
any funding whatsoever, and (3) designating an employee or series of employees to enforce
mask requirements who would be paid exclusively with federal or local funds.” Id. at 924.
The Supreme Court of South Carolina reiterated its Wilson holdings and specifically
explained, “[The Proviso] prohibits the use of funds appropriated or authorized by the
2021–2022 Appropriations Act to announce or enforce a mask mandate. . . . [W]e do not
reject the possibility that funds not appropriated or authorized by that act may be used to
announce or enforce a mask mandate.” Id.
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On August 24, 2021, before the Supreme Court of South Carolina issued its
decisions in Wilson and Richland, two nonprofit advocacy organizations for individuals
with disabilities -- Disability Rights South Carolina and Able South Carolina -- and nine
parents of students with disabilities who attend South Carolina public schools (collectively,
“Appellees”) brought this action against Spearman, Wilson, seven local school districts --
the Greenville County School District, the Horry County School District, Lexington
County School District One, the Oconee County School District, Dorchester County
School District Two, the Charleston County School District, and the Pickens County
School District -- and South Carolina Governor Henry McMaster (“McMaster”), seeking
to enjoin the Proviso’s enforcement. Appellees contend that the Proviso prohibits local
school districts from imposing mask mandates, which violates Title II of the Americans
with Disabilities Act and Section 504 of the Rehabilitation Act because children with
disabilities are at increased risk of severe symptoms from COVID-19 compared to other
children, and without mask mandates for students and staff, children with disabilities
cannot safely attend in-person schooling and are deprived of its benefits.
Several weeks after the Supreme Court of South Carolina issued its opinion in
Wilson, and two days before it issued its opinion in Richland, the district court in this case
granted Appellees’ request for a preliminary injunction and enjoined the named defendants
from enforcing the Proviso. McMaster and Wilson (collectively, “Appellants”) -- but none
of the other named defendants -- timely appealed the district court’s order.
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II.
Our “judicial Power” extends only to “Cases” and “Controversies.” U.S. Const. art.
III, § 2. “Standing to sue is a doctrine rooted in the traditional understanding of a case or
controversy” that “limits the category of litigants empowered to maintain a lawsuit in
federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338
(2016). “To satisfy the irreducible constitutional minimum of standing, a plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Deal
v. Mercer Cnty. Bd. of Educ., 911 F.3d 183, 187 (4th Cir. 2018) (alterations and internal
quotation marks omitted). Appellees, as “the part[ies] invoking federal jurisdiction, bear[]
the burden of establishing these elements.” Spokeo, Inc., 578 U.S. at 338.
The existence of standing is a legal issue that we review de novo. Buscemi v. Bell,
964 F.3d 252, 258 (4th Cir. 2020) (citing South Carolina v. United States, 912 F.3d 720,
726 (4th Cir. 2019)). “When a question of standing is apparent, but was not raised or
addressed in the lower court,[2] it is our responsibility to raise and decide the issue sua
2
Before the district court granted Appellees’ motion for preliminary injunction,
Wilson moved to dismiss this action for lack of standing, but the district court denied his
motion. Disability Rights S.C v. McMaster, No. 3:21-cv-02728-MGL, 2021 WL 4449446(D.S.C. Sept. 28, 2021). The district court held that Appellees’ alleged injuries were “fairly
traceable” to Wilson “due to his enforcement of [the Proviso]” via a letter he wrote to the
City of Columbia threatening legal action against the ordinances that were the subject of
the Wilson case before the Supreme Court of South Carolina. Id. at *3. The district court
also held, without further elaboration, that “a partial remedy for plaintiffs will satisfy the
redressability prong here.” Id. (citing Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801
(2021)). Wilson has not appealed the district court’s order. See J.A. 297–98. However,
since Appellants filed their notice of appeal, they both have filed motions to dismiss
(Continued)
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sponte.” Benham v. City of Charlotte, 635 F.3d 129, 134 (4th Cir. 2011) (citing
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 480 (4th Cir.
2005)). “If we conclude that [Appellees’] lack of standing deprived the district court of
jurisdiction, ‘we have jurisdiction on appeal, not of the merits but merely for the purpose
of correcting the error of the lower court in entertaining the suit.’” Id. (quoting Stephens
v. City of Albemarle, 524 F.3d 485, 490 (4th Cir. 2008)).
III.
Appellees do not have standing to pursue this action against Appellants. Even
assuming Appellees possess standing against some of the individuals and entities named
as defendants in this case, the standing inquiry must be evaluated separately as to each
defendant. See Bostic v. Schaefer, 760 F.3d 352, 370–71 (4th Cir. 2014) (“The Plaintiffs’
claims can therefore survive Schaefer’s standing challenge as long as one couple satisfies
the standing requirements with respect to each defendant.”); see also Calzone v. Hawley,
866 F.3d 866, 869 (8th Cir. 2017) (“Article III standing to sue each defendant . . . requires
a showing that each defendant caused [the plaintiff’s] injury and that an order of the court
against each defendant could redress the injury.” (citing Lujan v. Defs. of Wildlife, 504 U.S.
555, 560–61 (1992))); Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012)
Appellees’ claims against them that assert lack of standing as a reason for dismissal.
Governor McMaster’s Motion to Dismiss Plaintiffs’ Amended Complaint at 6–8,
Disability Rights S.C. v. McMaster, No. 3:21-cv-2728-MGL (D.S.C. filed Oct. 22, 2021);
Motion of Attorney General to Dismiss Amended Complaint at 1, Disability Rights S.C. v.
McMaster, No. 3:21-cv-2728-MGL (D.S.C. filed Oct. 29, 2021). Those motions remain
pending before the district court.
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(rejecting plaintiff’s argument that “Article III . . . permits suits against non-injurious
defendants as long as one of the defendants in the suit injured the plaintiff”).
Appellees assert that the Proviso has injured them by increasing the risk that their
disabled children will contract COVID-19, denying their children meaningful access to in-
person education, and causing them to enroll their children in private schools that are not
subject to the Proviso. 3 Although Appellees have alleged a nexus between their claimed
injuries and the Proviso -- at least prior to the Supreme Court of South Carolina’s decisions
in Wilson ex rel. State v. City of Columbia, 863 S.E.2d 456 (S.C. 2021), and Richland
County School District 2 v. Lucas, 862 S.E.2d 920 (S.C. 2021) -- they have not established
that such injuries are fairly traceable to Appellants’ conduct or would be redressed by a
favorable ruling against Appellants.
A.
Traceability
A plaintiff’s injury satisfies the traceability element of standing when there is “a
causal connection between the injury and the [defendant’s] conduct complained of by the
plaintiff.” Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 760 (4th Cir. 2018) (internal
3
Appellees’ claimed injuries focus on the plaintiff parents. Appellees do not
endeavor to explain how the two plaintiff nonprofit disability advocacy organizations have
been injured or have standing to sue. Still, “once it is established that at least one party has
standing to bring the claim, no further inquiry is required as to another party’s standing to
bring that claim.” Md. Shall Issue, Inc. v. Hogan, 971 F.3d 199, 209 (4th Cir. 2020) (citing
Horne v. Flores, 557 U.S. 433, 446–47 (2009); Watt v. Energy Action Educ. Found., 454
U.S. 151, 160 (1981)). We therefore do not analyze whether the plaintiff organizations
have standing to bring this action.
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quotation marks omitted). “While the defendant’s conduct need not be the last link in the
causal chain, the plaintiff must be able to demonstrate that the alleged harm was caused by
the defendant, as opposed to the ‘independent action of some third party not before the
court.’” Id. (quoting Frank Krasner Enters., Ltd. v. Montgomery Cnty., 401 F.3d 230, 234
(4th Cir. 2005)).
Appellees’ traceability arguments focus on Superintendent of Education Spearman,
who “directed that, pursuant to [the Proviso], ‘school districts are prohibited from requiring
students and employees to wear a facemask while in any of its educational facilities for the
2021-22 school year,’” and one of the defendant school districts, the Greenville County
School District, which “directly attributed its no-mask requirement to [the Proviso].”
Appellees’ Resp. Br. at 22. Critically, however, unlike the defendants that Appellees focus
on, Appellants have not taken any action enforcing the Proviso relative to Appellees -- and
Appellees do not assert that they plan to.
1.
Appellees’ complaint alleges that McMaster signed the appropriations act
containing the Proviso and “has publicly advocated for [the Proviso] to remain in effect
and be vigorously enforced.” J.A. 32. As we have made clear in the Eleventh Amendment
context, however, “[t]he mere fact that a governor is under a general duty to enforce state
laws does not make him a proper defendant in every action attacking the constitutionality
of a state statute.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.
2001) (quoting Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979)). The same is true
with respect to “[t]he fact that [the governor] has publicly endorsed and defended the
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challenged statutes.” Id. Rather, in order to be a proper defendant in an action to enjoin
an allegedly unconstitutional state law, the governor must have “a specific duty to enforce”
that law. Id.; see Hutto v. S.C. Ret. Sys., 773 F.3d 536, 550 (4th Cir. 2014) (“The Ex parte
Young exception to Eleventh Amendment immunity applies only where a party ‘defendant
in a suit to enjoin the enforcement of an act alleged to be unconstitutional’ has ‘some
connection with the enforcement of the act.’” (quoting Ex parte Young, 209 U.S. 123, 157
(1908))).
These principles apply with equal force in the standing context. See Okpalobi v.
Foster, 244 F.3d 405, 426 (5th Cir. 2001) (en banc) (“The requirements of Lujan are
entirely consistent with the long-standing rule that a plaintiff may not sue a state official
who is without any power to enforce the complained-of statute.”). To establish standing,
“[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a
direct injury as a result of the statute’s operation or enforcement.” Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979) (emphasis supplied) (citing O’Shea v.
Littleton, 414 U.S. 488, 494 (1974)). When a defendant has no role in enforcing the law at
issue, it follows that the plaintiff’s injury allegedly caused by that law is not traceable to
the defendant.
The dissent suggests that we should reject McMaster’s assertion that he has no
authority to enforce the Proviso because McMaster has also argued in this appeal that he
would be irreparably harmed by an injunction barring the Proviso’s enforcement. Post at
34–35. The dissent views this argument as an “admission” that McMaster can enforce the
Proviso. Id. But even if we accept this so-called “admission,” it is based on nothing more
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than McMaster’s status as the Governor of South Carolina and his general duty to execute
state laws. As we have just explained, and as the dissent recognizes, see id. at 33, this
general duty does not make McMaster a proper defendant in this action.
Moreover, the dissent overlooks the most critical fact in the case at this point --
Appellees bear the burden to demonstrate that they have standing to sue McMaster.
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). And they have failed to do so. Appellees
do not even purport to allege that McMaster has any duty to enforce the Proviso or that he
has attempted to enforce it in a manner that directly affects them. They certainly do not
argue, as the dissent does, that there are unresolved factual issues or questions of state law
that first need to be evaluated by the district court before we can determine that McMaster
is not equipped with the authority to enforce the Proviso. Therefore, Appellees have not
demonstrated that their alleged injuries caused by the Proviso are fairly traceable to
McMaster.
2.
By contrast, Appellees’ complaint alleges that Wilson has authority to enforce the
Proviso and has filed suit against the City of Columbia to declare its ordinances imposing
mask mandates in primary and secondary schools invalid because of the Proviso. J.A. 32;
see Wilson ex rel. State v. City of Columbia, 863 S.E.2d 456 (S.C. 2021). But, significantly,
the City of Columbia was not a defendant in this action below, and counsel for Appellees
acknowledged at oral argument that none of the plaintiff parents in this case have children
who attend school there. Oral Argument at 35:27–35:53, Disability Rights S.C. v.
McMaster, No. 21-2070 (4th Cir. Dec. 9, 2021), http://www.ca4.uscourts.gov/oral-
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argument/listen-to-oral-arguments. Appellees have also not alleged that any of the districts
where their children attend school have rescinded a mask mandate pursuant to a threat from
Wilson that he would seek to enforce the Proviso to void that mask mandate.
The dissent asserts that we “fail[] to appreciate the predictable chilling effect” that
Wilson’s enforcement of the Proviso against the City of Columbia has on other school
districts that seek to impose mask mandates. Post at 32 n.8. But the dissent’s contention
“that Wilson’s efforts to enforce the Proviso for some districts chilled other school districts
from imposing their own mask mandates,” id., has not borne out to be true. As detailed
below, to date, very few school districts in South Carolina have implemented mask
mandates, even after the district court in this case enjoined the Proviso’s enforcement. This
indicates that the claimed “chilling effect” is not as strong as the dissent suggests.
When a criminal statute is at issue, a plaintiff has standing to sue if he shows that
“there exists a credible threat of prosecution” pursuant to that statute. Babbitt, 442 U.S. at
298. However, “imaginary or speculative” fears of prosecution are not sufficient to convey
standing. Id. Although the Proviso is not a criminal statute, these principles are
nonetheless pertinent in this case. Essentially, Appellees have not demonstrated a “credible
threat” that Wilson will enforce the Proviso in a manner that directly affects them.
Therefore, even if we agree with the dissent that Wilson has made some implausible
arguments about his ability or intentions to enforce the Proviso, the connection between
Appellees’ claimed injuries and Wilson’s enforcement of the Proviso against the City of
Columbia is weak, and Appellees have not established that those claimed injuries are fairly
traceable to Wilson.
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B.
Redressability
“An injury is redressable if it is ‘likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.’” Doe v. Va. Dep’t of State Police, 713
F.3d 745, 755 (4th Cir. 2013) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 181 (2000)), cert. denied, 572 U.S. 1015 (2014). A plaintiff’s
burden to establish redressability “is not onerous”: he must only “show that [he] personally
would benefit in a tangible way from the court’s intervention.” Deal, 911 F.3d at 189
(quoting Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 284 (4th Cir. 2018)). To
that end, “[t]he removal of even one obstacle to the exercise of one’s rights, even if other
barriers remain, is sufficient to show redressability.” Id. at 190 (quoting Sierra Club, 899
F.3d at 285). But redressability is “problematic when third persons not party to the
litigation must act in order for an injury to arise or be cured.” Doe, 713 F.3d at 755.
An order enjoining Appellants’ enforcement of the Proviso would not redress
Appellees’ claimed injuries. As we have already explained, McMaster has no
responsibility for enforcing the Proviso, so such an order would have no effect on his
conduct. And Wilson has neither implemented nor threatened to implement his
enforcement authority against the districts where Appellees’ children attend school, so it is
wholly speculative that proscribing his ability to enforce the Proviso would cause the
school districts where Appellees’ children attend school to impose mask mandates and
thereby enable Appellees’ children to return to classes in person.
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In fact, counsel for Appellants represented at oral argument that even with the
injunction in place, the overwhelming majority of school districts in South Carolina have
not imposed universal masking for students and staff. Oral Argument at 54:15–54:30,
Disability Rights S.C. v. McMaster, No. 21-2070 (4th Cir. Dec. 9, 2021),
http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments. Appellees’ children
do not attend school in any of the districts that have imposed mask mandates since the
injunction was issued, although two children have returned to in-person schooling as a
result of a “citywide [mask] mandate.” See Appellees’ Resp. Br. at 25. This suggests that
the Proviso -- and Wilson’s onetime enforcement of it against a municipality where none
of Appellees’ children attend school -- is not the significant barrier to universal masking in
the schools Appellees’ children attend that Appellees contend it is.
Moreover, as the Supreme Court of South Carolina made clear in Wilson and
Richland, the Proviso does not prohibit a school district from imposing a mask mandate.
This, of course, is contrary to Appellees’ interpretation of the Proviso in their complaint,
which was filed before the decisions in those cases were issued. But consistent with that
interpretation, Appellees sought, in part, relief preventing Appellants from “prohibiting
school districts from requiring masks for their students and staff” via their enforcement of
the Proviso. J.A. 57. Arguably, Wilson and Richland have already provided Appellees this
relief: Following these decisions, a school district can, in fact, use funds other than those
appropriated in the 2021–2022 appropriations act to implement a mask mandate. Indeed,
at least one school district -- the Charleston County School District, which was named as
a defendant below -- has done so, although its initial mask mandate was lifted beginning
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November 10, 2021. See Update on CCSD Board of Trustees’ Decision About Face
Coverings, Charleston County School District (last visited Jan. 13, 2022),
https://www.ccsdschools.com/site/default.aspx?PageType=3&DomainID=4&ModuleInst
anceID=488&ViewID=6446EE88-D30C-497E-9316-3F8874B3E108&RenderLoc=0&Fl
exDataID=32769&PageID=1. In response to increasing COVID-19 cases in the area, the
Charleston County School District also imposed a temporary mask mandate in effect from
January 4 until January 14, 2022. See Facemasks Enforcement, Charleston County School
District (last visited Jan. 13, 2022), https://www.ccsdschools.com/facemasks. Clearly, the
school districts where Appellees’ children attend school have chosen not to impose
ongoing mask mandates. This demonstrates that ultimately, the injunction enjoining
Appellants’ enforcement of the Proviso has not served to return Appellees’ children to the
classroom, which is the only way Appellees assert their claimed injuries can be redressed.
Therefore, Appellees have not established that an order enjoining Appellants’ enforcement
of the Proviso would redress their claimed injuries.
IV.
For the foregoing reasons, we vacate the district court’s order as it relates to
Appellants and remand this action to the district court with instructions to dismiss
Appellees’ claims against Appellants for lack of standing.
VACATED IN PART, REMANDED WITH INSTRUCTIONS
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WYNN, Circuit Judge, dissenting:
The Appellants in this matter are Henry McMaster in his capacity as the Governor
of South Carolina and Alan Wilson in his capacity as Attorney General for South Carolina
(“McMaster and Wilson”). The Appellees in this matter are disability-rights groups,
parents, and South Carolina public school students with medical disabilities, but like my
colleagues in the majority, I address only whether the plaintiff-parents have standing to sue
individually and on behalf of their children (“Parents”). See Majority Op. at 10 n.3
(“Appellees do not endeavor to explain how the two plaintiff nonprofit disability advocacy
organizations have been injured or have standing to sue.”).
McMaster and Wilson urge us to conclude that the Parents lack standing to sue them.
But McMaster and Wilson’s inconsistent—and demonstrably false—arguments must be
rejected. Because I believe that the Parents have standing to enjoin McMaster and Wilson
from enforcing a clearly discriminatory budget proviso, I must, respectfully, dissent.
I.
To establish standing, a plaintiff must show “(1) it has suffered an ‘injury in fact’
that is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167, 180–
81 (2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–561 (1992)).
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The Parents persuasively allege that they and their children are injured by South
Carolina budget proviso § 1.108 (“the Proviso”). 1 The Proviso states that “[n]o school
district, or any of its schools, may use any funds appropriated or authorized pursuant to
[the 2021–2022 Appropriations Act] to require that its students and/or employees wear a
facemask at any of its education facilities.” 2 2021 S.C. Acts No. 94, pt. IB, § 1.108. This
prohibition also extends “to the announcement or enforcement of any such policy.” Id.
The Parents produced convincing record evidence showing that (1) a prohibition on
mask mandates increases their children’s risk of contracting COVID-19; and (2) disabled
students like the Parents’ children are more susceptible to contract and suffer serious effects
from COVID-19. Under our precedent, there is “no doubt” that this “increased
risk . . . constitutes cognizable harm.” 3 Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp., 204 F.3d 149, 160 (4th Cir. 2000) (en banc); see also, e.g., ARC of Iowa
1
The majority opinion does not dispute that the Parents have alleged an adequate
injury. See Majority Op. at 10.
2
Though the Proviso refers to “school district[s]” and “schools,” I refer to them
collectively as “school districts.”
3
The Parents also allege that the Proviso effectively denies disabled students
meaningful access to in-person education and financially harms parents by forcing them to
enroll their children in more expensive schools. They claim that these injuries are
“independent” of the increased risk of contracting COVID. Response Br. at 21. Not so. If
there was no increased threat of contracting COVID, then the Parents could not
manufacture an “independent” injury by pulling their children out of class or enrolling
them in different schools. Of course, there could be other reasons parents might make such
decisions that would support an injury, but the Parents have not alleged any such reasons.
Cf. Deal v. Mercer Cnty. Bd. of Educ., 911 F.3d 183, 190 (4th Cir. 2018) (noting, in the
First Amendment Establishment Clause context, that a student’s “feelings of
marginalization” by a school can “constitute an independently actionable injury”).
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v. Reynolds, No. 4:21-CV-00264, 2021 WL 4166728, at *7 (S.D. Iowa Sept. 13, 2021)
(finding disabled students alleged a “concrete and particularized injury” from the operation
of a ban on school mask mandates).
McMaster and Wilson wisely focus their arguments instead on the causation and
redressability requirements. After all, “when the plaintiff is not himself the object of the
government action or inaction he challenges,” causation and redressability are “ordinarily
substantially more difficult to establish.” Lujan, 504 U.S. at 562 (citation and internal
quotation marks omitted). That is the situation here: the Parents are complaining about the
Proviso’s regulation of third parties—the school districts—not the Proviso’s regulation of
the Parents or their children directly.
But while it may be more difficult to establish causation and redressability in such
a situation, “standing is not precluded.” Id. In fact, it is well established that a plaintiff may
properly allege an “injury produced by determinative or coercive effect upon the action of
someone else.” Bennett v. Spear, 520 U.S. 154, 169 (1997) (emphasis added). This coercive
effect need not be certain to succeed; so long as a plaintiff can show that that their injury
flows from “the predictable effect of Government action on the decisions of third parties,”
the elements of standing are satisfied. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566
(2019) (emphasis added). And it is certainly “predictable” here that school districts
forbidden from using state funds to impose mask mandates will not impose such
mandates—especially when Attorney General Wilson has already demonstrated a marked
willingness to sue to enforce compliance with the Proviso.
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Nonetheless, McMaster and Wilson counter that this relatively straightforward
conclusion is improper for three reasons. None are persuasive.
A.
McMaster and Wilson first claim that the Proviso does not do what it was clearly
intended to do: bar school districts from requiring, announcing, or enforcing mask
mandates period. They seize on the fact that the Proviso, by its terms, “prevents only the
use of state-authorized or -appropriated funds to announce o[r] enforce [mask] mandates.”
Opening Br. at 13 (emphases added). Thus, according to McMaster and Wilson, school
districts still have the option of using “federal or local funds, rather than state funds, if they
[wish] to enforce a mask mandate.” Reply Br. at 7 (emphases added). And since the
“Proviso does not actually prohibit all mask mandates in public schools,” they argue that
we cannot trace the Parents’ injuries to McMaster and Wilson’s enforcement of the Proviso
or find those injuries would likely be redressed by enjoining said enforcement. Opening
Br. at 13–14.
This argument is flatly inconsistent with prior statements made by nearly every
entity to consider the Proviso. To start, Harvey Peeler, Jr., President of the South Carolina
Senate, and Jay Lucas, Speaker of the South Carolina House, have stated that the Proviso—
which is fittingly entitled a “Mask Mandate Prohibition,” 2021 S.C. Acts No. 94 § 1.108—
“is clear and unambiguous”: it “prohibits face-covering mandates in public schools no
matter where in the state they are located,” J.A. 200 (emphasis added). Similarly, the U.S.
Secretary of Education believes the Proviso categorically “prohibit[s] local [school
districts] from adopting requirements for the universal wearing of masks.” J.A. 214
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(emphasis added). So does South Carolina’s Director of Health and Environmental Control.
See J.A. 40 (observing that the Proviso “prohibits the implementation of mask mandates in
schools” (emphasis added)).
Even the other defendants in the case below—South Carolina Superintendent of
Education Molly Spearman and several school districts—have interpreted the Proviso “to
mean that school districts are prohibited from requiring students and employees to wear a
facemask while in any of its educational facilities for the 2021–22 school year.” J.A. 146
(statement of Superintendent Spearman) (emphasis added); accord Safe Return to In-
Person Instruction & Continuity of Services Plan, Greenville Cnty. Sch. Dist. (2021),
https://www.greenville.k12.sc.us/greerhs/Upload/Uploads/SafeReturntoInPersonInstructi
on82020[1].pdf (“[M]asks cannot be required under a State Budget Proviso.”); Back-to-
School 2021-22 FAQs, Horry Cnty. Schs. (Aug. 26, 2021), https://www.horrycounty
schools.net/Page/16552 (“According to South Carolina Law (Proviso 1.108), neither
students nor employees can be required by a public school district to wear a face mask at
any of its educational facilities.”).
Governor McMaster and Attorney General Wilson are not exceptions. For months,
they argued in letters, public statements, and legal filings—including documents filed with
the court below—that the “Proviso simply prohibits mask mandates in public schools.” D.
Ct. Docket No. 58 at 2–3 (Governor McMaster legal memorandum) (emphasis omitted); 4
4
“D. Ct. Docket No. ___” refers to documents filed in the underlying matter,
Disability Rts. S.C. v. McMaster, No. 3:21-02728-MGL (D.S.C.).
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accord D. Ct. Docket No. 55 at 6 (Attorney General Wilson legal memorandum) (“Proviso
1.108 . . . prohibits mask mandates by school districts.”); see also J.A. 114 (“The terms of
the Proviso . . . overwhelmingly demonstrate the legislature’s intent that schools funded
with State appropriations must not impose or implement mask mandates.” (quoting
Attorney General Wilson’s Pet. for Original Jurisdiction and Expedited Consideration at
13, Wilson ex rel. State v. City of Columbia, 863 S.E.2d 456 (S.C. 2021) (No. 2021-000889)
[hereinafter “Wilson Petition”])); J.A. 107 (“The Proviso is quite clear that masks are not
to be mandated by government for the schools of this State.” (quoting Wilson Petition at
6)); J.A. 192 (statement of Governor McMaster) (“State law now prohibits school
administrators from requiring students to wear a mask.”).
The reason why all these sophisticated parties believed—and evidently still believe,
see infra—that the Proviso effectively bans mask mandates is obvious: while the Proviso
may only bar the use of state funding for mask mandates, it is “nearly impossible to entirely
separate activity within public schools from state-appropriated funds.” Meg Kinnard, Gov:
SC Law ‘Very Clear’ in Banning School Mask Mandates, Associated Press (Aug. 6, 2021),
https://apnews.com/article/business-health-coronavirus-pandemic-only-on-ap-d59d210e3
0de0b7b39a3b8b9d4666437 (paraphrasing Governor McMaster); see also J.A. 188–97
(media sources discussing the purpose of the Proviso as expressed by Governor McMaster).
Governor McMaster recognized as much in filings with the district court, where he
acknowledged that “while it is theoretically possible that a local government could impose
a mask mandate without running afoul of the Proviso, practically speaking, virtually any
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enforcement or announcement of a mask mandate in a public school would require some
use of state-appropriated funds.” D. Ct. Docket No. 58 at 3 n.1 (emphasis added).
Similarly, in briefing before the Supreme Court of South Carolina, Attorney General
Wilson wrote that “[t]he Proviso cannot be avoided through a bookkeeping ploy such as
the use of federal or local funds.” Brief for Petitioner at 6, Wilson, 863 S.E.2d 456 (No.
2021-000889) (emphasis added); accord id. at 14 (“Other funds such as federal monies or
local revenues or the provision of masks cannot circumvent the prohibition of a mask
mandate.”); see also J.A. 114 (arguing that the “expenditure of public funds will
necessarily be involved in a school district’s” attempt to enforce a City of Columbia mask
mandate, “even if the City provide[d] the masks” to the schools (quoting Wilson Petition
at 13)). He further argued that “[i]f Petitioners could evade the Proviso, based upon a
bookkeeper’s tracing of the funding source, the law would be eviscerated and the
appropriations power marginalized.” Brief for Amicus Att’y Gen. Wilson at 5, Richland
Cnty. Sch. Dist. 2 v. Lucas, 862 S.E.2d 920 (S.C. 2021) (No. 2021-000892) (emphases
added). Thus, if we take McMaster and Wilson at their word, the Proviso is the source of
the Parents’ injuries because it forbids school districts from enforcing virtually any mask
mandate and “cannot be avoided through the back door” use of federal or local funding. Id.Fast-forward a few months and McMaster and Wilson now claim that the “Proviso
does not actually prohibit all mask mandates in public schools,” Opening Br. at 13, and
that given the availability of “federal and local funds, it is hard to fathom that a [school]
district that wanted to enact a mask mandate could not do so,” Reply Br. at 12 n.2.
According to McMaster and Wilson, the reason for this stunning 180-degree reversal is the
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Supreme Court of South Carolina’s decision in Richland County School District 2 v. Lucas.
There, the court rejected a state constitutional challenge to the Proviso. 862 S.E.2d at 924.
Along the way, it declined to hold that school districts could impose mask mandates
“funded by federal or local funds”; instead, it simply noted that its opinion did “not reject
the possibility that funds not appropriated or authorized by [the 2021–2022 Appropriations
Act] may be used to announce or enforce a mask mandate.” Id. (emphasis added).
McMaster and Wilson seize on this “do not reject the possibility” language, arguing
that the Supreme Court of South Carolina “has spoken” and held “that the Proviso does not
actually prohibit all mask mandates in public schools.” Opening Br. at 13; see also id.
(“Whatever trepidation any district may have initially had about enacting one while the
Proviso was in effect, Richland . . . necessarily removes it.”); Reply Br. at 4–5 (“[T]his
Court should take the S.C. Supreme Court at its word: The Proviso does not ban mask
mandates in public schools . . . .” (cleaned up) (citation omitted)); id.at 10 (arguing that the
state Supreme Court “has left no doubt that mask mandates” are enforceable with federal
or local funds (emphasis added)).
But that simply does not follow. Choosing not to reject the possibility of a
proposition is not the same thing as accepting that proposition. For example, not rejecting
the possibility that Bigfoot might exist surely does not mean accepting that Bigfoot does
exist. See Courtney Taylor, What ‘Fail to Reject’ Means in a Hypothesis Test, ThoughtCo.
(Jan. 28, 2019), https://www.thoughtco.com/fail-to-reject-in-a-hypothesis-test-3126424
(observing that as a matter of mathematics and logic, the “‘failure to reject’ a [proposition]
should not be confused with acceptance”). Likewise, the Supreme Court of South
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Carolina’s comment that it did not reject the possibility that a purely federally or locally
funded mandate could be imposed does not mean that court endorsed or accepted that
approach.
In fact, just weeks before its decision in Richland, the Supreme Court of South
Carolina in Wilson ex rel. State v. City of Columbia likewise declined to “outright reject
the possibility that a local government could impose a mask mandate without contravening
[the] Proviso”—but nevertheless suggested that attempting to partition federal or local
funds for a mask mandate would likely be an exercise in futility. 863 S.E.2d at 461
(emphasis added). The court noted that it “strains credulity” to argue that a mask mandate
could be imposed on public schools “without any assistance from school personnel and
without [expending] a penny of state funds.” 5 Id. (emphases added).
After all, as Governor McMaster previously explained, “state funds permeate just
about everything that the school [system] does.” Kinnard, supra. That’s why Attorney
General Wilson believes that any “schools funded with State appropriations must not
5
McMaster and Wilson argue that this language was aimed at the specific mask
mandate in Wilson, “which sought to fine school officials for violations of the city’s
ordinance.” Reply Br. at 4. Not so. The Supreme Court of South Carolina first found it
improbable that the City of Colombia “will itself fund and enforce the mandate in the City’s
public schools” without “using any state-appropriated funds to do so.” Wilson, 863 S.E.2d
at 461. It then separately noted that, as a factual matter, the City’s ordinance actually
required school personnel to help enforce the mask mandate or face fines. Id. Therefore,
the attempt by McMaster and Wilson to limit Wilson to its facts must fail—especially given
that Governor McMaster himself has argued that Wilson should be read to apply broadly
to bar “virtually any” mask mandate. D. Ct. Docket No. 58 at 3 n.1 (emphasis added).
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impose or implement mask mandates.” J.A. 114 (emphasis added) (quoting Wilson Petition
at 13).
The Supreme Court of South Carolina cases of Wilson and Richland did not change
this calculus. At best, they left open the question of whether a purportedly federally or
locally funded mandate would violate the Proviso. At worst, they suggested that it would
be virtually impossible to impose such mandates “without [spending] a penny of state
funds.” Wilson, 863 S.E.2d at 461. Either way, there remains reason to doubt that school
districts will be able to partition their funding streams in a way that avoids legal liability,
which creates a predictable chilling effect on school districts that might otherwise consider
implementing mask mandates. 6
McMaster and Wilson counter that segregating funding streams is not as difficult as
Wilson made it out to be. Reply Br. at 11. Perhaps so. But the Parents are not required to
show that it would be impossible for school districts to impose mask mandates with the
Proviso in place. They are merely required to show that the Proviso has a “predictable”
To be sure, at least one school district—Charleston County—tempted fate by
6
purporting to implement a mask mandate using only federal or local funding after Wilson
was decided. See Update on CCSD Board of Trustees’ Decision about Face Coverings,
Charleston Cnty. Sch. Dist., https://tinyurl.com/nw2s9c3e (last visited Jan. 5, 2022). But
soon after, private plaintiffs sued to block the school district’s mask mandate. See Compl.,
Cooke v. Charleston Cnty. Sch. Dist., No. 2021-CP-10-04295 (S.C. Ct. Com. Pl.). And as
support for their subsequent motion for a temporary restraining order, those plaintiffs cited
a letter from Attorney General Wilson that (1) suggested that private litigants may sue to
enforce the Proviso and (2) interpreted the Wilson decision as holding that the Proviso
“leave[s] to parents the masking decision.” Mot. for TRO, Ex. B at 2, Cooke v. Charleston
Cnty. Sch. Dist., No. 2021-CP-10-04295 (S.C. Ct. Com. Pl.) (emphasis added). Litigation
is currently ongoing, but the plaintiffs recently filed a notice of voluntary dismissal without
prejudice.
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coercive effect on school districts. Dep’t of Com., 139 S. Ct. at 2566 (emphasis added).
And again, it is “predictable” that school districts barred from using state funds to impose
mask mandates won’t impose such mandates, especially given the uncertainty over whether
the comingled nature of school funding streams would make a federally or locally funded
mandate vulnerable to legal challenge. See, e.g., Chase Laudenslager, Dorchester District
Two Not Moving Forward with Mask Requirement Despite Majority Support, Count on 2
News (Sept. 28, 2021), https://www.counton2.com/news/local-news/dorchester-county-
news/dorchester-district-two-not-moving-forward-with-mask-requirement-despite-majori
ty-support/ (Dorchester School District Two noting the “difficult[y of] separat[ing] funds
for [a mask mandate] due to comingling of funds” and “[l]egal challenges connected to
[the] Proviso” as “support for not implementing a face covering requirement”). In the end,
McMaster and Wilson never account for the predictable chilling effect that the Proviso, its
enforcement by them, and their own statements have had on curbing school mask
mandates.
Even setting aside their previous assertions that the Proviso bans all mask mandates
in public schools, McMaster and Wilson have taken inconsistent positions on this matter
before this Court. To be sure, when it suits them, McMaster and Wilson eagerly argue that
since federal and local funding is available, school districts retain “the ultimate authority
to decide whether to require all teachers, students, staff, and visitors to wear masks.” Supp.
Br. at 17–18 (emphasis added); see also Reply Br. at 9 (opining that “the decision whether
to enact a mask mandate remains where it has always been: with the school districts”);
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Opening Br. at 13 (arguing whether students will be required to wear masks “turns on what
that school district chooses to do”).
But in the same breath, McMaster and Wilson repeatedly state that the “Proviso
represents the General Assembly’s preference to leave the ultimate decision on whether
children wear masks in schools to parents, rather than have [schools] decide whether
children must wear masks.” Supp. Br. at 5 (emphases added) (citation and internal
quotation marks omitted); accord id. (“The state legislature has elected to leave the
decision [over masking] to parents.” (quoting Wilson, 863 S.E.2d at 459)); Reply Br. at 13
(“[T]he Proviso represents ‘the policy of the state legislature to leave to parents the
masking decision’ . . . .” (quoting Wilson, 863 S.E.2d at 459)); see also D. Ct. Docket No.
58 at 8 (“[T]he Governor’s consistent message about masks in schools is that parents
should have the ultimate say in whether their children wear masks.”). But if parents have
ultimate decision-making authority over whether their children wear masks at school, then
school districts must lack the ability to impose mask mandates. McMaster and Wilson
cannot have it both ways.
In sum, McMaster and Wilson have spent months telling the public, school districts,
state courts, and federal courts that the Proviso leaves school districts with no choice: they
cannot impose mask mandates, period. McMaster and Wilson have also forcefully argued
that any attempt to work around the Proviso by using federal and local funds must fail,
since it would be virtually impossible to enforce any mandate without spending a penny of
state funds.
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Now McMaster and Wilson shamelessly claim exactly the opposite: school districts
can still decide to impose mandates, and federal and local funds can easily be used to
enforce such mandates. As a result, they argue, the injuries alleged by the Parents are due
to the independent decisions made by each school district to impose or not impose a
mandate—not the entirely predictable effects of the Proviso or their enforcement of the
Proviso. We should not condone this blatant—and convenient—flip-flopping.
B.
A similar flip-flopping gambit underlies McMaster and Wilson’s second argument
against causation and redressability. To wit, they claim that under our related Eleventh
Amendment jurisprudence, “a proper defendant must be an official who has ‘some
connection with the enforcement of the act.’” Supp. Br. at 13 (quoting Ex parte Young, 209
U.S. 123, 157 (1908)). And they contend neither the “‘Governor’s general authority’ as the
State’s chief executive [nor] ‘the Attorney General’s role as a legal advisor’” are
sufficiently connected to the enforcement of the Proviso “to make them proper defendants”
in this action. Id. (quoting Doyle v. Hogan, 1 F.4th 249, 255 (4th Cir. 2021)). Remarkably,
in proceedings below, Attorney General Wilson went so far as to say that he “has no
enforcement responsibility as to the Proviso.” D. Ct. Docket No. 55 at 1 (emphasis added).
And since McMaster and Wilson are not connected to the enforcement of the Proviso, their
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argument goes, their actions cannot truly be the cause of the Parents’ injuries, nor would
enjoining them redress those injuries. 7
That argument flies in the face of McMaster and Wilson’s previous statements and
actions. Only a few months ago, Attorney General Wilson told the Supreme Court of South
Carolina, in no uncertain terms, that “it is the Attorney General’s role to bring to the Court’s
attention violations of the Constitution and the rule of law.” J.A. 116 (quoting Wilson
Petition at 15). For that reason, “the executive branch, via the Attorney General, must
enforce” the Proviso’s “prohibiti[on] [on] mask mandates in the schools.” J.A. 112–13
(emphasis added) (quoting Wilson Petition at 11–12).
True to his word, Attorney General Wilson then sued the City of Columbia to
enforce the Proviso in Wilson and joined in the defense of the Proviso as an amicus in
Richland. But “Wilson cannot take such action to specifically enforce the laws at issue and
then hope to [defeat causation and redressability] under a theory that he simply has” no
7
McMaster and Wilson baldly claim that a “self-executing funding decision like the
Proviso has no official subject to federal jurisdiction charged with enforcing it, so there is
no way for a federal court to review the [Proviso]” at all. Supp. Br. at 13 (emphases added).
In other words, no one could ever have standing to sue to enjoin the enforcement of the
Proviso and budget provisions like it, no matter how blatantly unlawful or unconstitutional
they may be. The majority opinion does not address this breathtakingly broad argument,
which would seemingly allow state officials to have their cake and eat it too: they can sue
to enforce the Proviso when they wish but then retreat behind the fact that the Proviso does
not specifically charge them with enforcing it when sued themselves.
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ability or responsibility to enforce the Proviso. 8 Bradacs v. Haley, 58 F. Supp. 3d 499, 513
(D.S.C. 2014) (criticizing Attorney General Wilson for a similar about-face).
8
The majority opinion fails to appreciate the predictable chilling effect of Attorney
General Wilson’s enforcement efforts. Though it acknowledges that a state official may be
properly sued if they have “some connection with the enforcement of the [Proviso]”—
which Wilson obviously does—it faults the Parents for failing to also show that “any of
the districts where their children attend school have rescinded a mask mandate pursuant to
a threat from Wilson that he would seek to enforce the Proviso to void that mask mandate.”
Majority Op. at 12, 14 (quoting Hutto v. S.C. Ret. Sys., 773 F.3d 536, 550 (4th Cir. 2014)).
In effect, the majority opinion is asking for the Parents to produce a smoking gun
when Article III only requires that their injuries be “fairly traceable” to McMaster and
Wilson’s enforcement efforts. See Gaston Copper, 204 F.3d at 161 (“[T]raceability does
not mean that plaintiffs must show to a scientific certainty that [a] defendant’s
[conduct] . . . caused the precise harm suffered by the plaintiffs.” (citation and internal
quotation marks omitted)); Dep’t of Com., 139 S. Ct. at 2566 (stating that “Article III
‘requires no more than de facto causality’” (quoting Block v. Meese, 793 F.2d 1303, 1309
(D.C. Cir. 1986) (Scalia, J.))).
Requiring the Parents to show that “Wilson will enforce the Proviso in a manner
that directly affects them” misunderstands the indirect nature of the injury alleged by the
Parents: that Wilson’s efforts to enforce the Proviso for some districts chilled other school
districts from imposing their own mask mandates. Majority Op. at 14. Put differently, the
Parents are injured regardless of whether Wilson has sued their children’s school districts
specifically or the districts next door; his enforcement efforts will predictably deter schools
from sticking their own necks out to impose mask mandates. See Laudenslager, supra
(reporting this precise effect on Dorchester District Two).
The majority opinion dismisses this chilling effect as evidently “not [very] strong,”
since “very few school districts” implemented mandates after the injunction was entered.
Majority Op. at 14. If the majority is criticizing the Parents for failing to allege a big enough
injury, that is irrelevant to our Article III inquiry. See Gaston Copper, 204 F.3d at 156(holding an injury “need not be large”—“an identifiable trifle will suffice” (citation
omitted)). What’s more, the fact that some school districts—including Chester, Hampton,
Jasper, Marlboro, Richland, Sumter, and certain districts in Florence County—did impose
mandates following the injunction suggests that Wilson’s enforcement efforts were
stopping them from enforcing mask mandates.
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Attorney General Wilson weakly counters that the “Attorney General’s suit to
invalidate Columbia’s ordinance did not implicate federal law” but rather only “ensured a
municipality followed state funding law.” Reply Br. at 6. That’s a distinction without
difference or relevance. Whether the Attorney General’s efforts to enforce the Proviso
“implicate[d]” federal or state law is immaterial for standing purposes; the point is that he
sought to, and succeeded in, enforcing the Proviso. The fact that it was a municipality sued,
rather than a school district, does not dissipate the chilling effect his enforcement efforts
may have had on school districts. Under our precedent, in order for a plaintiff “to sue a
state officer for an injunction” in an Ex parte Young action, “the officer sued must be able
to enforce, if he so chooses, the specific law the plaintiff challenges.” Doyle, 1 F.4th at
254–55. That is unquestionably the case for Attorney General Wilson.
Governor McMaster has a slightly better argument that he is an improper defendant.
Though the Parents note that Governor McMaster “is responsible under South Carolina
law for ensuring [that] ‘the laws be faithfully executed,’” J.A. 32 (quoting S.C. Const. art.
IV, § 15), we have consistently held that the “mere fact that a governor is under a general
duty to enforce state laws does not make him a proper defendant in every action attacking
the [validity] of a state statute.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331
(4th Cir. 2001) (quoting Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979)). After all,
“it is not enough that the officer [sued] possesses the ‘[g]eneral authority to enforce the
laws of the state’ broadly if the officer cannot enforce the [specific] law at issue.” Doyle,
1 F.4th at 255 (quoting Waste Mgmt. Holdings, 252 F.3d. at 331). However, other
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arguments made by McMaster and Wilson themselves suggest that the Governor can
enforce the Proviso.
Critically, in their opening brief, McMaster and Wilson argue that the public interest
and other equities weigh against an injunction because “the Governor and Attorney
General, as well as the State, are irreparably harmed . . . whenever ‘a State is enjoined by
a court from effectuating statutes enacted by representatives of its people.’” Opening Br.
at 32 (emphases added) (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts,
C.J., in chambers)). In other words, McMaster and Wilson admit that (1) they have the
power to “effectuat[e]” (enforce) the Proviso and (2) the injunction harms them by barring
said enforcement. But McMaster and Wilson cannot simultaneously claim that they have
no obligation or ability to enforce the Proviso and that they will also be irreparably harmed
if they are enjoined from enforcing the Proviso.
That’s like saying I have no obligation or ability to make my friend stop eating
broccoli, but I will be irreparably harmed if you prevent me from stopping him from eating
broccoli. If that makes no sense, it’s because I just cannot have it both ways—either I have
the obligation and ability to force my friend to cease his broccoli eating and I will be
harmed if you stop me from doing so, or I have no obligation or ability to do so and I will
suffer no consequences if you stop me from policing my friend.
Likewise, if Governor McMaster had no responsibility or ability to enforce the
Proviso, then he wouldn’t suffer any harm from the injunction at all. The injunction would
simply prevent him from doing something he already cannot do.
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But according to McMaster and Wilson, that is not the case; the Governor can
effectuate the Proviso and, in their words, will be “irreparably harmed” if he is not allowed
to. Opening Br. at 32. Thus, the Governor, by his own admission, has “the ability . . . to
enforce the [Proviso] under his statutory or constitutional powers,” and has “demonstrated[,
by negative implication, a] willingness . . . to enforce the [Proviso].” Okpalobi v. Foster,
244 F.3d 405, 417 (5th Cir. 2001) (en banc). That is enough to establish standing to sue
him. 9
9
The majority opinion ducks this conclusion because it assumes—without any
citation to the record, the parties’ briefs, or legal authority—that the enforcement powers
McMaster claims to wield over the Proviso are “nothing more than [his] status as the
Governor of South Carolina and his general [constitutional] duty to execute state laws,”
which is insufficient to confer standing to sue him. Majority Op. at 12–13 (emphasis
added). But unlike the majority, I do not presume to know the source of authority McMaster
claims gives him the power to enforce the Proviso, nor do I presume to know South
Carolina law well enough to know whether his claim has merit. I only know that he himself
claims to wield that authority, which is enough for Article III.
If we are unsure about this conclusion, the proper course of action would be to
remand to the district court, not dismiss the Governor from the case entirely. The Governor
did not raise standing as a defense in his first motion to dismiss; only the Attorney General
did. As a result, the district court only had the opportunity to consider Attorney General
Wilson’s Eleventh Amendment–adjacent arguments regarding traceability and
redressability. Governor McMaster did raise similar concerns as a defense in his second
motion to dismiss, but we assumed jurisdiction before the district court had a chance to
rule on it.
Typically, we have held “that the district court should have the opportunity to
address [Eleventh Amendment–adjacent] issue[s] [like this] in the first instance.” Lytle v.
Griffith, 240 F.3d 404, 411 (4th Cir. 2001). This seems especially appropriate when, as
here: (1) the Governor’s own inconsistent statements about the scope of his enforcement
powers make his “connection, if any, to the enforcement of the [Proviso]” a “disputed”
question of state law, id. at 410, and (2) the Parents have alleged numerous facts that
suggest McMaster may be likely to pursue enforcement, see J.A. 32 (reporting that
“Defendant McMaster signed the budget legislation containing Proviso 1.108”; McMaster
(Continued)
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Ultimately, McMaster and Wilson are asking us to dismiss them from the case
because they say they are not sufficiently connected to the enforcement of the Proviso—
even though Attorney General Wilson has said he “must enforce” the Proviso, Wilson has
sued to enforce the Proviso, and both of them claim they will be irreparably harmed if we
stop them from enforcing the Proviso. We should reject their inconsistent legal arguments
to the contrary.
C.
Finally, McMaster and Wilson engage in a bit of Monday-morning quarterbacking
using extra-record evidence to prop up their redressability argument. Specifically, they say
that “after the preliminary injunction was entered,” six of the seven “school districts named
as defendants in this case did not impose mask mandates,” 10 and “[a]t least three of
them . . . affirmatively decided not to impose a mandate.” Opening Br. at 11 (emphasis
added). These developments allegedly confirm that “enjoining the Proviso does not make
it more likely that the school districts where [the Parents’] children attend school will enact
“encouraged the Legislature to enact Proviso 1.108”; the Governor “has publicly advocated
for Proviso 1.108 to remain in effect and to be vigorously enforced”; and “Defendant
McMaster enacted an Executive Order containing a similar prohibition on mask
mandates”).
Because the “District Court is [likely] in the best position to address in the first
instance the competing questions of fact and state law necessary to resolve the [Governor’s
enforcement powers,] . . . we [should] remand for that purpose.” Id. (quoting Keller v.
Prince George’s Cnty., 827 F.2d 952, 964 (4th Cir. 1987)).
The exception was Charleston County School District, which implemented a
10
mask mandate but allowed it to lapse later in the fall.
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a mask mandate,” so the Parents’ injuries must not be redressable by the injunction. Id. at
14.
This argument fundamentally misunderstands the law of standing. A plaintiff “need
not show that a favorable decision will relieve [their] every injury.” Sierra Club v. U.S.
Dep’t of the Interior, 899 F.3d 260, 284 (4th Cir. 2018) (quoting Larson v. Valente, 456
U.S. 228, 242–44, 243 n.15 (1982)). Rather, a plaintiff need only show that they
“personally would benefit in a tangible way from the court’s intervention.” Gaston Copper,
204 F.3d at 162 (quoting Warth v. Seldin, 422 U.S. 490, 508 (1975)). For that reason,
“removal of even one obstacle to the exercise of one’s rights, even if other barriers remain,
is sufficient to show redressability.” Sierra Club, 899 F.3d at 285 (emphasis added).
That is precisely what the district court’s injunction accomplished. True, the Parents
have not gotten complete relief from some of the school districts they sued—at least so
far 11—but enjoining the Proviso at least removed “one obstacle” standing in the way of the
11
After letting its earlier mask mandate expire, the Charleston County School
District recently decided to temporarily reimpose a mask mandate for the start of classes
following winter break. Charleston County School District, Masks Requirement Effective
January 3, 2022, https://www.ccsdschools.com/site/default.aspx?PageType=3&Domain
ID=4&ModuleInstanceID=488&ViewID=6446EE88-D30C-497E-9316-3F8874B3E108
&RenderLoc=0&FlexDataID=38473&PageID=1 (last visited Jan. 6, 2021). With
infections from the omicron variant of the novel Coronavirus surging, I doubt it will be the
last district or school to do so. See Caitlin Herrington, Positive COVID Rates Jump Sharply
Across South Carolina Over Holiday Weekend, DHEC Says, Greenville News (Dec. 29,
2021), https://www.greenvilleonline.com/story/news/2021/12/29/cdc-covid-19-cases-rate
-sharp-increase-omicron-sc/9037711002/ (explaining that the percent positive test rate
“jump[ed] up from the 9.2% last reported on Dec. 22” to “23.8%” five days later and
attributing this increase to the omicron variant).
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mask mandates that the Parents say will protect their children from a dangerous disease. 12
Id. Under our precedent, that “is surely a tangible benefit sufficient to confer standing.”
Deal v. Mercer Cnty. Bd. of Educ., 911 F.3d 183, 190 (4th Cir. 2018) (citation and internal
quotation marks omitted) (holding that a plaintiff who had left her home school district due
to a Bible-study program had standing to seek an injunction against the program because
it would provide her the “opportunity” to return to her home district, even though she did
not avow that she would return to that district).
McMaster and Wilson struggle to counter this point. First, they acknowledge that
while “a partial remedy is sufficient for redressability[,] . . . that remedy must provide relief
by force of law.” Reply Br. at 10. And since the injunction “does not require a single school
district to change its mask policy,” it “does not” provide such relief. Id. But this is just a
recycled way of saying that the Parents will not get complete relief via an injunction against
the Proviso. And again, that is not required under our precedent. See Sierra Club, 899 F.3d
at 284–85.
Second, trying a slightly different tack, McMaster and Wilson argue that an
injunction “must redress an injury-in-fact ‘through a decree of a conclusive character,’”
12
The majority opinion also fails to appreciate this nuance. Like McMaster and
Wilson, it faults the Parents for failing to allege that an injunction “would cause the school
districts where [the Parents]’ children attend school to impose mask mandates and thereby
enable [the Parents]’ children to return to classes in person.” Majority Op. at 15–16
(emphases added). In effect, the majority opinion is requiring the Parents to show that an
injunction would “relieve [their] every injury” and return their children to class. Sierra
Club, 899 F.3d at 284. In doing so, it neglects to note that enjoining a ban on mask mandates
is a “tangible benefit” that gets the Parents one step closer to returning their children to in-
person classes. Deal, 911 F.3d at 190. That is all that Article III requires.
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which did not occur here “because school districts already had the authority to enact mask
mandates, which is what would redress any injury from schools being too dangerous
without mask mandates.” Reply Br. at 10 (quoting Lewis v. Cont’l Bank Corp., 494 U.S.
472, 477 (1990)). But this is just a recycled way of saying that school districts are free to
use federal and local funds for a mandate, which, as explained above, is likely illusory.
In the end, satisfying the redressability “requirement is not onerous.” Deal, 911 F.3d
at 189. The Parents need only show that “granting the requested relief [is likely to] at least
mitigate . . . the alleged harm.” Sierra Club, 899 F.3d at 285. And no amount of extra-
record, post-hoc evidence can paper over the fact that an injunction against the Proviso
would mitigate the Parents’ injuries.
II.
Disabled students already face numerous barriers to fully participating in school.
McMaster and Wilson urge us to allow them to escape comeuppance for erecting and
enforcing yet another barrier—one that will keep countless children from being able to
participate in in-person classes. Shamelessly, they seek to do so based on a series of fatally
flawed legal positions supported by baldly inconsistent evidence. Because that undermines
the integrity of the judicial process, I must, respectfully, dissent.
39