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Tennessee judge allows school mask mandate, temporarily blocks governor’s opt-out order

A young girl wearing a mask writes on a worksheet at her desk.
A federal judge has temporarily blocked Gov. Bill Lee’s executive order that allows parents to opt out of mask requirements in Tennessee schools. The governor’s order “opt-out provision interferes with plaintiffs’ ability to access services at their public schools,” said U.S. District Judge Sheryl Lipman of Tennessee’s Western District.
Eli Imadali for Chalkbeat

A federal judge has temporarily blocked Gov. Bill Lee’s executive order that allows parents to opt out of mask requirements in Tennessee schools.

The governor’s “opt-out provision interferes with plaintiffs’ ability to access services at their public schools through a reasonable accommodation – required mask coverings,” U.S. District Judge Sheryl Lipman of Tennessee’s Western District said Friday in her statement.

Plaintiffs and Shelby County parents Brittany and Ryan Schwaigert, and Emily Tremel filed a class action lawsuit against the governor alleging that he violated the Americans with Disabilities Act. The suit says his order allowing parents to circumvent a Shelby County health ordinance requiring masks in schools in Memphis and its suburbs jeopardizes the health and education of immunocompromised children.

The temporary restraining order lasts until Sept. 17 or until trumped by another action of the court. A preliminary hearing will be held on Sept. 9, where the judge may rule to extend the ban or reinstate the governor’s order until a trial is conducted.

Attorney Brice Timmons, representing the plaintiffs, said that his firm, Donati Law, has received calls from several concerned parents.

“There are lots of parents of disabled children in Shelby County getting organized,” he said.

Jim Newsom, from the state’s attorney general office, argued that the lawsuit was premature because the parents had not exhausted the appeals available through the Individuals with Disabilities Education Act.

The judge addressed that claim in her response, stating that the plaintiffs sought “to protect their bodily health within a public educational setting – protection provided by the Shelby County Health Department through the enforcement of a mask mandate.”

In the state’s initial response to the temporary restraining order request, attorneys said, “The Court should not overlook the incredible reach of plaintiffs’ argument. If these claims do apply to anyone in the employment context, and plaintiffs are right that a mask mandate is required by the [Americans with Disabilities Act], then nearly every employer and business open to the public must also adopt a mandatory mask requirement for its employees and patrons.”

Although face coverings have proved to slow the spread of the coronavirus, Lee, who is vaccinated and often seen wearing a mask, has sent mixed messages about his views on masks in schools.

During an appearance on Fox News in May he said, “I don’t think any kid ought to wear a mask. If you want to follow the science, you wouldn’t have kids in a school wearing masks when kids do not get sick from COVID.”

But during an August press conference he switched positions, saying, “If you want to protect your kid from the virus or from quarantine, the best way to do that is to have your kid in school with a mask.”

The judge and lawyers for the plaintiffs referred to his comment in August during the hearing, stating that the governor acknowledged the positive public health implication of masking.

Universal masking has been a controversial issue in Tennessee and many Republican led states where conservatives often argue that mask mandates intrude on personal liberty. But what if one’s expression of personal liberty harms the well-being of another? That’s one of the questions that plaintiffs and their lawyers want the courts to consider.

Tremel is the mother of an 11-year-old girl who attends Houston Middle School in the Germantown Municipal School District in the suburbs of Memphis. Tremel’s daughter has a chromosomal abnormality that causes episodic ataxia, which impairs movement and the nervous system, and congenital nystagmus, which causes involuntary eye movement.

Shortly after the governor allowed families to circumvent the county mask requirement, Tremel’s daughter was diagnosed with COVID, and it has “disrupted” her school year, said Tremel.

The Schwaigerts are parents of a 13-year-old boy who attends West Middle School in the Collierville Municipal School District, also in the Memphis suburbs. Their son has autism and is immunocompromised because of chemotherapy needed to manage tuberous sclerosis complex, a genetic disorder that causes polycystic kidney disease, epilepsy, and hypertension. Since the governor’s order, the teenager now goes to school 15 minutes late to avoid being in the hall with unmasked children, missing part of his daily instruction, his mother said.

On Wednesday, the Council of Parent Attorneys and Advocates, a Maryland-based nonprofit that promotes disability rights, filed a brief in the case supporting the plaintiffs.

It said that the governor’s order “obstructs access” to schools and education and called the Tennessee lawsuit a case of national importance.

It added that the final verdict will decide if “children with disabilities have equal access to attend their public schools and obtain an education alongside their non-disabled peers.”

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