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Two lawsuits supporting face masks in schools challenge Tennessee Gov. Bill Lee’s opt-out order

(Left to right) Shelby County Mayor Lee Harris and Tennessee Governor Bill Lee make speeches in two separate photographs.
Shelby County government, led by county Mayor Lee Harris (left) filed a lawsuit against Tennessee Gov. Bill Lee (right) claiming that his executive order allowing  parents to opt out of school mask requirements impedes the county from providing safe public schools. 
Courtesy of TN.gov and State of Tennessee

A class action lawsuit filed against Tennessee Gov. Bill Lee alleges that he violated the Americans with Disabilities Act when he issued an executive order allowing students to opt out of a Shelby County mask mandate and mask requirements at local schools.

This is at least the second lawsuit filed in the last two days against the governor over the order.

According to Friday’s lawsuit, “the Governor has put the parents of medically vulnerable students in the position of having to decide whether to keep their children at home where they will likely suffer continued learning loss or risk placing them in an environment that presents a serious risk to their health and safety.”

Following the recommendations of the U.S. Centers for Disease Control and Prevention and the American Academy of Pediatrics, the county health department issued an ordinance on Aug. 6 requiring face coverings in schools countywide. But Lee’s Aug. 16 order challenged that mandate.

The plaintiffs have asked for a temporary restraining order, and the parties will present their case for the temporary injunction at 11 a.m. Monday before U.S. District Judge Sheryl Halle Lipman of Tennessee’s Western District.

The lead plaintiffs are Brittany and Ryan Schwaigert, parents of a 13-year-old boy who attends West Middle School in the Collierville Municipal School District, and Emily Tremel, mother of an 11-year-old girl who attends Houston Middle School in the Germantown Municipal School District. Both districts are in the Memphis suburbs.

The Schwaigerts’ son has autism and is immunocompromised because of a chemotherapy regimen that he takes to manage tuberous sclerosis complex, a genetic disorder that causes polycystic kidney disease, epilepsy, and hypertension. Tremel’s daughter has a chromosomal abnormality that causes episodic ataxia, a condition that impairs movement and the nervous system, and congenital nystagmus, a condition that can affect vision.

The governor’s press secretary was not immediately available for comment on Friday.

Lee, who is vaccinated and often photographed wearing a mask, advocates voluntary masking.

In a Twitter post on the day he announced his order, Lee said, “Districts will make the decisions they believe are best for their schools, but parents are THE authority and will be the ultimate decision-makers for their individual child’s health and well-being.”

He also stated that he would not call a special legislative session “at this time” to pass additional measures, a move that some Republicans have requested.

Attorney Brice Timmons, a civil rights and educational law specialist at Donati Law, who is representing the plaintiffs, says that Lee’s parental choice argument is flawed.

“The sentiment that parents know what’s best for their kids is nice, but the way he has framed this is as though parents’ decisions about their children only affect their children,” he said.

Timmons added that because Shelby County has a significant percentage of students who suffer from obesity, juvenile diabetes, hypertension, and other conditions, local schools serve a significant number of students who are medically vulnerable and at risk for developing severe complications if infected with COVID.

“So when a parent makes a decision for a child to opt out of a mask requirement or when a child simply decides they’re going to opt out, in the case of many high school students, they’re not making decisions for their children or themselves,” he said. “They’re making decisions for other people’s children, and the decision they’re making is that their comfort matters more than folks’ education and the safety of disabled students.”

Shelby County government made a similar argument on Thursday when it filed a lawsuit against Lee claiming that his executive order allowing parents to opt out of school mask requirements impedes the county from providing healthy and safe public schools.

Its lawsuit is the latest development in the ongoing saga between Democratic county leaders, including County Mayor Lee Harris, who believe COVID mitigation mandates protect the public, and the Republican administration, which views such mandates as intrusions on personal liberties.

In the suit, county officials, who cover Memphis and its suburbs, state that Lee’s executive order “violates the decencies of civilized conduct” because it defies scientific research and the opinions of leading medical experts who state that masks reduce the spread of COVID.

Emerging evidence increasingly suggests that vaccines are the best protection against the virus, but vaccines are not yet available for children under the age of 12.

The lawsuit, similar to a case parents filed against Florida Gov. Ron DeSantis earlier this month, notes that without vaccines or masks, children “subject themselves to potentially COVID-19 positive students, to suffer fear, uncertainty, illness and possibly even death.”

As of Thursday, 70% of the pediatric ICU beds in Shelby County are full and children make up 32% of the active COVID cases in the County, according to the lawsuit.

It adds, “COVID-19 delta variant is running rampant through schools, resulting in isolation quarantine of students that will continue and get worse until either the majority of students can be and are vaccinated, or until masking is required uniformly throughout school systems.”

Despite the strong scientific evidence that masks reduce community spread of the virus, pleas to protect personal liberties and end mask requirements remain strong in Memphis and Shelby County.

Earlier this month, a group of parents met outside of the Shelby County Health Department to protest the county’s ordinance requiring masks. Some shared fears over the negative health implications of mask wearing, and others advocated for parental choice.

Amy Bittikofer, a mother of a kindergartner and a fifth grader in the Bartlett City Schools district near Memphis, said that when her kids must wear a mask, she encourages them to wear it below their noses.

“I just don’t think that it’s anyone else’s right to make decisions for my children. My kindergartner has asthma,” she said.

In a rare move, Dr. James R. Downing, president and CEO of St. Jude Children’s Research Hospital in Memphis, weighed in on the political debate earlier this week in an open letter. Downing stated that hospitals are overrun and more widespread mask usage would ease the burden.

“St. Jude will continue to advocate this position and share its perspective — grounded in science — with Gov. Bill Lee and members of the General Assembly about this issue,” he said. “Debate is healthy, but not when the debate is about wearing a mask that can decrease the chance of children contracting COVID-19.”

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