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Judge hears objections to Tennessee governor’s order making wearing masks in school a parental choice

A student fiddles with her mask during the first day of school at Virginia Court Elementary School in Aurora on Thursday, August 12, 2021.
Gov. Bill Lee’s executive order to let parents to opt their students out of local mask mandates are the focus of two legal challenges in Tennessee courts.
Eli Imadali for Chalkbeat

Seeking a temporary restraining order to halt Tennessee Gov. Bill Lee’s executive order allowing students to opt out of wearing masks, attorneys for two Shelby County parents told a federal judge Monday that the order creates an “unreasonably dangerous environment” and violates the Americans with Disabilities Act.

The plaintiffs in the class action lawsuit, who are parents of children with disabilities, say their children are high risk for developing severe complications for COVID and need their peers to wear masks in order for immunocompromised children to learn in safe environments.

Lee framed his order as a choice for parents to make. But it challenges a Shelby County masks in schools mandate issued Aug. 6.

U.S. District Judge Sheryl Halle Lipman of Tennessee’s Western District did not rule on the temporary restraining order, but is expected to make a decision quickly. She granted the parties 24 hours to file written closing arguments and rebuttals.

In addition to the attorneys for both sides, attorneys for the county were present and voiced their support for the parents’ complaint, which aligns with a similar case they filed against the governor on Thursday. Also on hand were members of the legal team for Shelby County Schools, the state’s largest district. Shelby County School officials have continued to promote universal masking despite the governor’s orders. Donati Law is representing the plaintiffs.

The plaintiffs, Brittany Schwaigert, mother 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, appeared before Lipman. Tremel appeared virtually because her child recently tested positive for COVID following the governor’s opt out order.

“It’s disrupted her school year completely,” said Tremel of the COVID diagnosis and resulting quarantine.

Tremel’s daughter has a chromosomal abnormality that causes episodic ataxia, a condition that impairs movement and the nervous system, and congenital nystagmus, which causes involuntary eye movement. Because nystagmus makes online learning challenging, Tremel said that she was relieved when the county issued its mask ordinance because it gave her daughter the opportunity to go to school safely with her peers.

She said about 10% to 20% of the students at her daughter’s school attended without masks after the governor’s opt-out order on Aug. 16.

“We were horrified when that decision came down,” she said. “The one thing that was there to keep our child safe was now being taken away.”

Fellow parent and plaintiff Schwaigert added that the governor’s order “changed everything” regarding her child’s safety at school. Her son has autism and is also 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. Since the executive order, he now comes to school 15 minutes late to avoid being in the hallway with unmasked children.

Jim Newsom, from the state’s attorney general office, argued that the lawsuit was premature because the parents had not yet exhausted the appeal process available for families of children with disabilities. Newsom said that the proper course would be to file a complaint with school and district officials and then with the State Department of Education.

Schwaigert said that during a “tense” email exchange, a Collierville school official told her that the district’s hands were tied because of the governor’s position.

The defense did not call any witnesses.

The judge also heard from two medical experts brought by the plaintiffs, both of whom expressed that the pandemic had reached a new and more serious phase with the more contagious and more dangerous delta variant.

Dr. Sara Cross, an infectious disease physician with Regional One Health said that health officials are bracing for a gloomy September because their models are predicting a peak in infections at the end of the month.

Dr. Joi Wilson-Townsend, a pediatrician with Memphis Children’s Clinic added that they are already feeling the repercussions of the governor’s opt-out orders.

“In the past month, we have been totally overwhelmed by COVID. It’s totally different than it was a year ago,” said Wilson-Townsend.

Wilson-Townsend added that Shelby County has a disproportionately high number of children who suffer from diabetes, obesity, and asthma, and they are particularly vulnerable.

“Allowing a child not to be masked puts a higher burden on other children in the classroom,” she said.

Earlier in the day, teachers organizations and allies pressed the state to allow local districts to require masks and fully switch to virtual school at a virtual press conference.

“We support the efforts of our district to keep our students and staff safe, including using mask mandates,” said Danette Stokes, president of the United Education Association of Shelby County. “The state spent millions of dollars on a public health campaign: ‘Face it, masks work.’ It is wrong for them to back away from that basic fact.”

Matt Barnum contributed reporting.

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