Teacher, doctors join federal suit against Lee’s mask opt-out order
A teacher, her child and an organization of pediatricians have signed on in support of a federal lawsuit calling for a lasting block on Gov. Bill Lee’s mask opt-out order for school students.
The American Academy of Pediatrics and its Tennessee chapter filed an amicus brief in support of the plaintiffs, which now include teacher Kimberly Morrise and her 14-year-old daughter, who is immunocompromised.
“The AAP’S strong recommendation of universal masking for students, teachers, and support staff in school has remained consistent from the beginning—because masks are a safe, effective, and critical infection control measure,” reads the organization’s brief.
The national organization represents 67,000 pediatric doctors, and Tennessee’s chapter has 1,000.
These are the latest development in the lawsuit, which claims the governor’s mask opt-out order for schools is a violation of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.
While defendant Shelby County, which is separately suing the governor, has supported the plaintiffs, Lee’s team has argued the laws do not apply, and relief should be sought through a different education disability law for individual students.
U.S. District Court Judge Sheryl Lipman heard arguments Thursday for a preliminary injunction on the governor’s Executive Order 84. During closing arguments, the judge dialogued with an attorney for the state, seeking more specificity in the application of the team’s argument.
The injunction, if ordered, could last the duration of the federal lawsuit, lawyers for the parents explained.
Lipman temporarily blocked the governor’s mask opt-out order among schools in Shelby County with an order issued Friday. Students can’t opt-out of the Shelby County Health Department’s mask mandate for schools so long as the temporary restraining order is in place. It expires Sept. 17.
Attorneys for the parents believe it is possible that while the temporary order only applies to Shelby County, the judge has the authority and standing to block the order across the state of Tennessee.
“We brought this suit because our clients are in Shelby County, and we brought this suit as it relates to Shelby County, but yes, this executive order affects the whole state, and there’s no reason the judge couldn’t enjoin it across the state,” Timmons told reporters after the hearing Thursday.
National organization of pediatric doctors issue support for plaintiffs, which now include teacher, child
Morrise, whose child is the third plaintiff in the suit as of Thursday evening, joins parents Brittany and Ryan Schwaigert and their son Greyson, G.S., as well Emily Tremel, mother to S.T.
All three students have disabilities recognized by their school, and have health diagnoses that put them at risk for more severe COVID-19 disease.
Morrise is a Collierville Schools teacher familiar with education law, according to the complaint. While her daughter, J.M., has previously had an individualized education plan for a speech condition, it resolved, and she no longer has the plan.
But, she suffers from an immunodeficiency that makes symptoms more severe whenever she is sick. While she is fully vaccinated, she can’t rely on the vaccine to protect against COVID-19 for her to the same degree that others without immunodeficiency can, Morrise declared in court documents.
Because of this and the lack of universal masking, J.M. eats lunch alone in the library at her Collierville school, and takes “circuitous routes” to class to avoid crowds, sometimes causing her to be late to class. Last year, she struggled with virtual learning.
“While (J.M.) might choose not to participate in large gatherings even with an enforceable mask mandate, she would be able to participate in more school activities if one were in place,” Morrise declared in a court document.
In an amicus brief filed Tuesday by the AAP and its Tennessee chapter, the group affirmed the parents’ and students’ experiences.
“Children with disabilities suffer even more disproportionate harm from a lack of in-person school... Additionally, virtual learning is often more difficult to access for some children with special health care needs,” according to the brief.
The national group published guidance this summer supporting mandatory masking for all people inside school buildings regardless of vaccination status. The policy reduces the spread of COVID-19 and protects all children and “particularly the medically vulnerable,” per the brief.
“Universal masking reduces community transmission, thus reducing the likelihood that an infected person will come in contact with a child with special health needs, and reduces the likelihood of transmission to the child if an infected person does come into contact with an especially vulnerable child,” per the brief. “These steps should be universal and are separate ... from any individual education plans that may be necessary for individual children.”
Attorneys Samara M. Spence and Jeffrey B. Dubner of the Democracy Forward Foundation filed the brief on behalf of the AAP.