Judge halts mask opt-out order in Shelby County

A federal judge issued an order late Friday that temporarily blocks Tennessee Gov. Bill Lee’s school mask opt-out order until Sept. 17 in Shelby County.

That means that in Shelby County schools, children must wear masks, without the parent opt-out option Lee imposed by executive order on local governments across the state.

The 18-page order by U.S. District Court Judge Sheryl H. Lipman said the order applies to Shelby County only.

Even if the ruling applied statewide, it would not apply in Hamilton County, because Hamilton County Schools included a parent opt-out for its mask mandate even before Lee issued his order.

Bryce Ashby, a lawyer for the families that filed the Shelby County suit on behalf of their children with disabilities, said he believes the order will apply to all schools in the county, including private and religious schools.

“This is a first step towards a long-term solution to protecting children in Tennessee who are vulnerable to COVID-19,” Ashby wrote in a text message. “We are pleased and along with our clients intend to see this through to the end.”

Efforts to reach a representative of Lee’s office were unsuccessful late Friday.

Lipman’s ruling says the court will hold a preliminary injunction hearing in the matter Thursday. The temporary restraining order is a short-term measure. An injunction would last for a longer time.

“The court is entering this order to prevent further injury, damage and loss to plaintiffs,” the judge wrote.

The judge’s action follows the filing of the lawsuit in federal court on Aug. 27 and a hearing

in federal court Monday.

Two children with disabilities and their parents filed the lawsuit, saying Lee’s rule meant they were exposed to unmasked students and to COVID-19, a virus that can cause serious illness or even death.

They argued Lee’s rule hurts their access to school, which they describe as a fundamental right.

The judge’s action comes as Lee continues to describe masking in schools as a matter of parents’ personal choice for their children. The current scientific consensus holds that face masks help prevent the spread of the virus, although more so when compliance is higher.

Most medical experts and disease experts support the use of masks in schools. More than 5,500 medical professionals have signed an open letter asking Lee to reverse course.

As the fight over face masks in schools continues, Tennessee’s pandemic has become the worst in the nation. As of Wednesday, Tennessee was reporting about 7,700 COVID-19 infections and 38 deaths per day. Though earlier waves of the virus mostly affected senior citizens, some children and teenagers have recently died of the disease.

Lee has acknowledged that medical experts are correct and that masks reduce the spread of the virus.

“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,” he was quoted as saying in a recent interview with The Associated Press.

But he didn’t back down.

“At the same time, I fundamentally believe parents should individually make that decision for their children,” Lee said. “It’s a way forward that will provide for parental choice but encourage the safety of our children moving forward.”

PROCEDURAL ARGUMENTS

In court filings, lawyers for the governor defended Lee’s mask opt-out rule on technical legal grounds, including that the disabled children and their parents had not exhausted other administrative procedures before filing a lawsuit, and that they lacked legal standing to sue.

In the Friday ruling, Lipman said none of those technical grounds was valid.

The lawsuit names Shelby County as a defendant, alleging the local government is complicit in the federal violations by its “failure … to enforce its own order requiring masking” in schools.

Shelby County ended up siding with the children with disabilities and their parents, arguing the masking order should be enforced. The county had filed its own lawsuit against Lee.

The two lawsuits are not the only challenges Lee has faced on the order. In Knoxville, a group of parents of children with disabilities on Thursday filed a federal lawsuit seeking to overturn Lee’s order.

And within a week of the opt-out order, United Stated Education Secretary Miguel Cardona sent Lee and Tennessee Department of Education Commissioner Penny Schwinn a letter about the order, saying it may infringe upon districts’ federal obligations to provide safe in-person learning plans.

On Monday, the federal education department announced it had launched investigations into Tennessee and four other states that have effectively banned mask requirements.

“The department has heard from parents from across the country — particularly parents of students with disabilities and with underlying medical conditions — about how state bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally,” Cardona said in a news release.

Brice Timmons, a lawyer for the plaintiffs, said at the end of Monday’s hearing he was “pleased to have support from all levels of government.”

THE ARGUMENTS

Lawyers Timmons, Ashby, Robert Donati and Craig Edgington of Donati Law are representing the two students and their families.

In an opening statement at a court hearing Monday, Timmons argued Tennessee parents “face a brutal choice” in deciding whether to send kids to school and risk COVID-19 infection or keeping them virtual and risk losing out on the benefits of in-person education.

That choice is “compounded” for families of disabled and immunocompromised students, like those he is representing. Plaintiffs have requested the suit be certified as a class-action suit, representing not only the two children but many others like them.

Critically, he said, the purpose of the Americans with Disabilities Act is to integrate disabled people into life with other non-disabled peers. Lee’s mask opt-out order takes away the “one tool” — required masking — that schools have to achieve that in the time of COVID-19.

Jim Newsom of the state Attorney General’s Office argued the issue did not fall under ADA but rather the Individuals with Disabilities Education Act, and that the families should have exhausted an appeals process first with their school districts and the state.

He began the argument after Lipman noted she was “struck by the fact” that Lee has said publicly masks are effective at preventing the spread of COVID-19.

The judge also demurred on Newsom’s suggestion that the court could end up monitoring the case as COVID-19 cases ebb and flow.

“The governor has inserted himself into the monitoring process” with the order, she said, in lieu of the county health department and others who are charged with reviewing health requirements by way of their professions.

THE TESTIMONY

Dr. Sara Cross, who works at Memphis’ Regional One hospital and teaches at the University of Tennessee Health Science Center, provided expert testimony on the effectiveness and necessity of masks in the classroom.

Cross also testified that Lee appointed her to the Governor’s Tennessee Coronavirus Task Force, which she has been a member of since the pandemic began in March 2020.

People who wear masks are primarily protecting others, she testified, by mitigating the spread of droplets that could be carrying the virus, if the person is knowingly or unknowingly infected.

She expects child hospitalizations to increase if masks are not used in schools.

Dr. Joi WilsonTownsend, a Memphis-area pediatrician, testified via video.

“Allowing children not to be masked puts a higher burden” on others, she said. Her offices are “overwhelmed with COVID,” she said, and testified that the offices have started to see repercussions of the opt-out order.

Emily Tremel, the mother of plaintiff S.T., testified via video. Her daughter, an 11-year-old not eligible for the vaccine, recently tested positive for COVID-19, shortly after an unmasked student tested positive. S.T. qualifies for an individualized learning plan at school and also faces health issues that can be triggered by an increased body temperature, she said.

Houston Middle School, where S.T. attends, has about 22% of students opting out and recently reported 27 new COVID-19 cases within one week, according to district data and Cross’ testimony.

“We were horrified,” by the executive order, Tremel said.

“We questioned even sending her” to school the next day, she said. “… It was awful but we felt like our hands were tied.”

Brittany Schwaigert testified about her son, Greyson, identified in the suit as G.S. Greyson, a 13-year-old student in Collierville’s district. He also requires specialized education services and is immunocompromised.

Because of the opt-out order, he is unable to have the immersion and interaction he needs with his peers who don’t have a disability, she said.

When she emailed the superintendent of the district about a need for the mask requirement, the superintendent told her to pursue virtual school, Schwaigert said, explaining that the virtual options Greyson had last academic year were not sufficient to his needs.

“I’m putting my child into a high risk” situation, Schwaigert said. “That’s unacceptable to me as a parent.”