Suit: Law banning mask mandates unconstitutional
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.