August 30, 2021

The Honorable Miguel A. Cardona

Secretary of Education
United States Department of Education
400 Maryland Avenue, SW
Washington, DC 20202

Dear Secretary Cardona:

I write in response to your August 18, 2021 correspondence, in which you take issue with
South Carolina law and suggest that it may be in conflict with recent administrative action by the
U.S. Department of Education.

As a threshold matter, providing a safe, in-person education for South Carolina’s students
is one of my most important priorities. Although I am pleased to know you share that goal, your
recent letter does nothing to advance it. Unfortunately, instead of seeking to work productively
with South Carolina, your letter appears to contain an empty and legally baseless threat to withhold
money allocated by Congress to South Carolina schools in the American Rescue Plan Act
(“ARPA”), Pub. L. 117-2, 135 Stat. 4 (Mar. 11, 2021). Respectfully, such a threat is contrary to
law and logic.

Under ARPA, Congress required local education agencies receiving federal funds to
develop “a plan for the safe return to in-person instruction and continuity of services.” Pub. L.
117-2, § 2001(i)(1), 135 Stat. at 23. Congress imposed no specific requirements on what those
plans must include. Yet, in an interim final rule, your Department purported to mandate that local
education agencies’ plans “must describe” how the agencies “will maintain the health and safety
of students, educators, and other staff and the extent to which it has adopted policies, and a
description of any such policies, on each of the following safety recommendations established by
the CDC: . . . Universal and correct wearing of masks.” ARPA Elementary & Secondary School
Emergency Relief Fund, 86 Fed. Reg. 21195, 21201 (Apr. 22, 2021). In your August 18 letter,
you admit that this interim final rule sought to “clarify” § 2001(i) of ARPA.

As the U.S. Supreme Court has recognized, “Congress may attach conditions on the receipt
of federal funds.” South Dakota v. Dole, 483 U.S. 203, 206 (1987). But the Court has also
recognized that there are limitations on Congress’s power to impose conditions. One limitation is
that the condition must be “unambiguous[],” so that the States can “knowingly” decide whether to
The Honorable Miguel A. Cardona
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August 30, 2021

accept the money and related conditions. Id. Importantly, Congress—not an agency—must
impose the unambiguous condition. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1,
17 (1981) (“[I]f Congress intends to impose a condition on the grant of federal moneys, it must do
so unambiguously.” (emphasis added)).

A regulation that purports to clarify a statute—as you say the Department’s interim final
rule does—cannot provide an unambiguous condition on federal funds because a regulation is not
an unambiguous declaration from Congress. In fact, the U.S. Court of Appeals for the Fifth Circuit
addressed this very issue earlier this year in a case involving the U.S. Department of Education:

[W]hen Congress places conditions on the States’ receipt of federal funds,

it must do so unambiguously. Regulations that interpret statutes are valid
only if they either match Congress’s unambiguous command or are
clarifying a statutory ambiguity. Relying on regulations to present the clear
condition, therefore, is an acknowledgment that Congress’s condition was
not unambiguous, so that method of analysis would not meet the
requirements of Dole.

Tex. Educ. Agency v. U.S. Dep’t of Educ., 992 F.3d 350, 361 (5th Cir. 2021) (citations omitted);
see also id. at 362 (“[T]he ability to place conditions on federal grants ultimately comes from the
Spending Clause, which empowers Congress, not the Executive, to spend for the general welfare.
The Constitution carefully separates the ‘purse’ from the ‘sword’ by assigning to Congress and
Congress alone the power of the purse.”).

The exact same law and logic apply here. The Department’s interim final rule is not an
unambiguous command from Congress. It therefore cannot be used as the basis to withhold federal
funds under ARPA from South Carolina’s schools. Nor can the interim final rule be used as a
backdoor attempt to impose a federal mask mandate on students. Parents—not federal
bureaucrats—know what is best for their children.

The people’s representatives in the South Carolina General Assembly passed a proviso as
part of the annual appropriations act to prohibit mask mandates in public schools. It appears that
you disagree with this decision, and that is your prerogative. However, your letter and thinly veiled
threats to take money from South Carolina schools and usurp parents’ decision-making authority
are both unproductive and dependent upon a legally incorrect premise. Although South Carolina
stands ready and willing to work with you to further our shared objectives, your recent letter
complicates that effort and serves as another example of the sort of unwarranted bureaucratic
action and intrusion into State affairs that South Carolinians have come to expect from this
Administration.

I look forward to working with you—in accordance with the law—to ensure that South
Carolina’s students enjoy a safe, fulfilling, and productive school year.

Yours very truly,

Henry McMaster