Feds: Mask mandate ban infringes upon federal requirements
Executive order at odds with Education Dept.
Tennessee's current mask policy for students may infringe upon districts' federal obligations to provide safe inperson learning plans, the country's top education official said in a letter to state officials Wednesday.
U.S. Education Secretary Miguel Cardona sent the letter, obtained by The Tennessean, to Gov. Bill Lee and Tennessee Education Commissioner Penny Schwinn. While Lee may be at odds with districts implementing mask mandates, his current opt-out order places districts at odds with federal requirements, according to the letter.
Cardona said the federal department is concerned Tennessee's actions could limit individual school district's abilities to plan and implement a safe inperson learning environment. The federal department will “closely review and monitor” whether Tennessee meets its federal fiscal requirements, he said.
On Monday, Lee issued an executive order requiring school districts to allow parents and families to choose to optout of mask requirements. The opt-out does not require a parent provide documentation for an exemption recognized by the Centers for Disease Control and Prevention.
Metro Nashville Public Schools and Shelby County Schools in Memphis did not immediately implement the order. Instead, each district issued statements late Monday stating that while they each reviewed the order, masks would still be required for all students.
State leaders immediately threatened legislative action Tuesday. Neither district has publicly announced compliance with the executive order.
Neither the governor's office nor the Tennessee Department of Education had responded to requests for comment as of Thursday afternoon.
Four Tennessee pastors urged other schools to follow in the footsteps of Nashville and Shelby County during a news conference on Thursday morning. They said Lee's order stripped school
officials of the ability to protect students and urged on school boards across the state to openly defy the governor by requiring masks anyway.
Rev. Aaron Marble, of Nashville, likened the call to disobey Lee’s order to the courageous civil disobedience used to integrate American schools. The Rev. Eugene Se’bree, also of Nashville, said the governor and lawmakers had left religious leaders no choice but to call for “radical resistance.”
“I’m well aware of what we are asking,” said the Rev. Lillian Lammers, of Memphis. “There were many times in the Bible where Jesus broke the law in order to feed people or care for people, as a way of teaching others that sometimes the law can get in the way of doing what is right.”
Cardona said in the letter Tennessee families need to “have the confidence that their schools are doing everything possible to keep students healthy.”
“Tennessee’s actions to block school districts from voluntarily adopting science-based strategies for preventing the spread of COVID-19 that are aligned with the guidance from the Centers for Disease Control and Prevention (CDC) puts these goals at risk and may infringe upon a school district’s authority to adopt policies to protect students and educators as they develop their safe return to in-person instruction plans required by Federal law,” Cardona wrote.
Tennessee is among eight states receiving such letters about mask mandates from the federal government. Cardona also sent letters to Arizona, Florida, Iowa, Oklahoma, South Carolina, Texas and Utah.
States with mask bans for students may face federal investigation. According to the New York Times, Cardona said he would deploy the Education Department’s civil rights enforcement arm to investigate the bans.
Cardona expressed support for school district leaders who have pledged to defy state orders by implementing mask requirements.
Cardona’s letter to Lee and Schwinn comes hours after President Joe Biden announced new efforts to use federal funding and enforcement powers to increase vaccination rates among nursing home staff and to stop governors from blocking mask mandates in schools.
On Wednesday, Biden directed Cardona to use “all oversight authorities and legal action” against governors who are preventing schools from requiring students to wear masks.
This could include withholding federal funds or using federal dollars to pay educators’ who might see their salaries cut if they defy state orders.
“We’re not going to sit by as governors try to block and intimidate educators protecting our children,” Biden said.
In Tennessee, lawmakers have threatened that if the state’s largest school districts don’t quickly comply with Executive Order 84, a special legislative session could happen after all.
Both Metro Schools and Shelby County Schools have stated that all students are still required to wear face masks, despite the governor’s order, and more districts are adopting or considering adopting mask requirements as COVID-19 cases among students and staff and quarantines surge.
The Shelby County Health Department, which has issued a mask requirement for all people in all school and daycare buildings, announced Wednesday a countywide mask mandate will take effect Friday. Officials described the reinstatement as a necessary means to alleviate overburdened hospitals as the COVID-19 delta variant tears through the unvaccinated population. Cases are surging across the state.
While Lt. Gov. Randy Mcnally, R-oak Ridge, resisted a recent push by House Speaker Cameron Sexton, R-crossville, to urge the governor to call legislators back for a special session to reel in school mask mandates, the Senate speaker changed his tune earlier this week.
“The Governor and the General Assembly cannot and will not allow lawful orders to be defied,” Mcnally, said in a statement Tuesday afternoon. “If these systems persist in resisting the order, we will have no choice but to exercise other remedial options.”
Nashville District Attorney Glenn Funk has said though that he won’t prosecute teachers or school officials “for keeping children safe.”
Cardona noted in his letter to Lee that American Rescue Plan funds (known to schools as the third installment of Elementary and Secondary School Emergency Relief Funds, or ESSER) allocated to states require schools to adopt a plan for the safe return to in-person learning, as well as the continuity of services.
“The Department’s interim final requirements clarify that such plan ‘must describe... how [the LEA] will maintain the health and safety of students, educators, and other staff and the extent to which it has adopted policies, and a description of any such policies, on each of the following safety recommendations established by the CDC...’ The safety recommendations include ‘universal and correct wearing of masks,’” Cardona wrote.
Lee’s executive order conflicts with whether the state might meet all of its federal fiscal requirements, Cardona wrote.
Tennessee received $2.5 billion in this latest, third round of federal coronavirus relief funding. Individual school district plans for spending their allocation are due to the Tennessee Department of Education by Aug. 27.
Cardona said while the federal department is “eager to partner with Tennessee” about school safety amid COVID-19, the department will “continue to closely review and monitor” whether the state is meeting federal fiscal requirements.
Meghan Mangrum covers education for the USA TODAY Network — Tennessee. Contact her at mmangrum@tennessean.com. Follow her on Twitter @memangrum.