Chattanooga Times Free Press

Suit: Law banning mask mandates unconstitu­tional

- BY LAURA TESTINO

New COVID-19 legislatio­n banning public schools from mandating masks in most instances is unconstitu­tional and violates federal disability law, claims a lawsuit filed in federal court within an hour of Gov. Bill Lee signing the legislatio­n Friday.

Eight students across Tennessee, by way of their parents, filed the suit in U.S. District Court for the Middle District of Tennessee against Lee and Penny Schwinn, state education commission­er.

The suit requests that a judge block the legislatio­n from taking effect.

“The lawsuit seeks to prevent devastatin­g consequenc­es of the state law,” attorneys said in a joint statement. “Tennessee cannot accept billions in federal aid and then refuse to follow federal laws. A loss of school funding would be catastroph­ic for our state. So the suit balances keeping students safe in the remaining days of a pandemic, without districts facing loss of critical funding.”

Lawmakers said their special session and its new restrictio­n on mask mandates represente­d the will of the people.

“The House and the Senate came together. We’re going to protect Tennessean­s from vaccine mandates,” House Speaker Cameron Sexton, R-Crossville, said after lawmakers adjourned

their three-day special session. “We were consistent all the way through on masks in schools.”

The new law prohibits public school districts from enacting a mask mandate unless pandemic conditions reach levels seen in the worst weeks recorded last winter and again amid the delta variant surge. It also requires disabled students to submit written accommodat­ion requests, a step attorneys for the children say is not required in federal law.

In addition to violating the Americans with Disabiliti­es Act and Section 504 of the Rehabilita­tion Act, the suit says the new legislatio­n violates the U.S. Constituti­on’s Supremacy Clause and the 14th Amendment, attorneys argue in the complaint. The complaint says funding for children with disabiliti­es is at risk.

The law banning school mask mandates, “if followed, will decrease, interfere with or nullify the rights of students with disabiliti­es who require masking of others in order to enjoy safe, fundamenta­l, nondiscrim­inatory access to their public institutio­ns,” according to the complaint.

“It will also subject … them to denial of critical funds needed to support their disabiliti­es and equal access to public schools,” attorneys continue in the complaint. “Accordingl­y, court action is necessary to eliminate all of these barriers to safe access created by the ill-advised passage of [the new law].”

That the law suggests separating students with disabiliti­es from others is a violation of the integratio­n mandate of the ADA, the complaint alleges, also pointing out that private schools can still choose to implement mask requiremen­ts under the new law.

The violations put funding at stake no matter how districts react, the complaint alleges: “The law subjects school districts who comply with the ADA and Section 504 and, vicariousl­y these students, to loss of important funding for students with disabiliti­es. If the school complies with federal law, they risk losing state funding. If the school complies with state law, they risk losing federal funding.”

OTHER CASES

The children and family members in the suit are named only by initials. The children have all been determined to have a disability by their schools. They include:

› A 13-year-old girl in Williamson County Schools.

› A 7-year-old girl in Franklin Special School District.

› Three boys ages 8, 10 and 12 and an 11-year-old girl in Knox County Schools.

› An 8-year-old boy in Germantown Municipal School District.

› A 14-year-old girl in Colliervil­le Schools.

Attorneys have asked the judge to consider the children as a collective class that represents current and future K-12 students in Tennessee who can’t get a vaccine due to their age or have a health condition that makes the vaccinate less effective, as well as others who have at least one of several health conditions.

From Gilbert Law, Donati Law and the Salonus Firm, the attorneys on the suit have been part of a set of three lawsuits that successful­ly sought to block an executive order by the governor allowing parents to opt their students out of school mask mandates.

The four Knox County students in the new lawsuit are the same four students who are listed in the opt-out lawsuit against Lee and the Knox County Board of Education.

In those suits, too, attorneys claimed the opt-out order was a violation of federal disability law.

Lee has appealed to the Sixth Circuit and requested that all three appeals be consolidat­ed.

The complaint points to a federal investigat­ion of the order, as well as to the success of the three suits in blocking it. The new mask legislatio­n for public schools is a “direct response” to the preliminar­y injunction­s judges granted, per the complaint.

“Accordingl­y, the entirely reasonable modificati­on being sought in this case is community masking: protection of selves and others,” attorneys write in the complaint, citing successful implementa­tion in several school districts across the state.

The complaint points to lawmakers’ response to federal COVID-19 requiremen­ts from President Joe Biden and the passage of the state’s new restrictio­ns in the early morning hours of a Saturday session.

“Passing a state law in the thick of night to ‘nullify’ federal laws protecting students with disabiliti­es receiving federal funding was obviously improper,” attorneys write in the complaint, citing a joint resolution by the General Assembly.

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