Parents of Disabled Tennessee Children Fight Mask Opt-Out

Adrian Sainz and Kimberlee Kruesi, Associated Press

August 31, 2021

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MEMPHIS, Tenn. (AP) — Mothers of two Tennessee children with serious illnesses asked a federal judge Monday to block an order by the governor allowing parents to opt out of coronavirus-related mask requirements in schools, arguing that it endangers kids with health conditions and hurts their ability to attend in-person classes.

U.S. District Judge Sheryl H. Lipman heard testimony in Memphis federal court as part of a lawsuit filed by the women, whose two children attend school in the Shelby County suburbs of Collierville and Germantown.

The municipal school districts opened earlier this month under a universal mask requirement issued by the county health department. Republican Gov. Bill Lee has resisted implementing a statewide mask mandate for schools, and he had initially left the decision to local officials. But on Aug. 16, he signed a statewide order allowing parents to opt out of the requirement. Hundreds of students have been attending classes without masks ever since.

While local decision-making is important, "individual decision-making by a parent on issues regarding the health and well-being of their child is the most important," Lee said when he issued the order.

In addition to the mothers' lawsuit, the government of Shelby County, which includes the city of Memphis, has also sued Lee amid a growing backlash against his order. Monday's court hearing came on the same day the U.S. Education Department announced that it's investigating Tennessee and four other Republican-led states that have banned mask requirements in schools. Department officials said the policies could amount to discrimination against students with disabilities or health conditions.

The Shelby County parents' lawsuit claims Lee's order violates the Americans with Disabilities Act, which prohibits the exclusion of students with disabilities from public educational programs and activities. Children with certain disabilities are more vulnerable to serious illness or death if they get COVID-19, the U.S. Centers for Disease Control and Prevention has said.

"The Governor has put the parents of medically vulnerable students in the position of having to decide whether to keep their children at home where they will likely suffer continued learning loss or risk placing them in an environment that presents a serious risk to their health and safety," the lawsuit states.

Emily Tremel, the mother of one child mentioned in the lawsuit, said her 11-year-old daughter suffers from a chromosomal abnormality that causes an intense loss of balance and coordination if her body temperature increases. Tremel testified Monday that her daughter has trouble with remote, online learning and would most benefit from going to school in person.

Attending classes surrounded by children who aren't wearing masks is dangerous for her child, however, Tremel said. In fact, she said, her daughter tested positive a week after Lee's order, after she was exposed to a maskless student who got COVID-19, Tremel said.

Tremel said she was "horrified" when Lee issued the order.

"It felt like the rug had been yanked out from underneath us," she said.

State Health Commissioner Lisa Piercey said last week that children made up 36% of the state's reported cases. In Nashville, nearly 600 students have tested positive for COVID-19 while nearly 4,000 were in quarantine as of Monday. Officials reported more than 800 active cases among students and nearly 100 among staff in the Knoxville area.

Hundreds of students throughout Tennessee have been forced to quarantine or isolate due to the COVID-19 outbreak. Some schools have closed classrooms, while others have temporarily switched to virtual learning.

Masks are a key coronavirus-prevention tool that are most effective when worn by a large number of people, public health experts say. The CDC has again recommended them for schools, saying they don't pose health risks for children older than toddler age. Vaccinations have not been authorized for children younger than 12.

Shelby County's health department has issued a mask requirement for K-12 schools. The county's largest school system, Shelby County Schools, is not allowing parental opt-outs for nonmedical reasons. However, smaller, suburban school districts, such as Germantown and Collierville, are allowing maskless students.

Tennessee's attorney general's office is representing Lee and challenging the attempt to block the order. The parents do not have standing for their claims, and arguments under the Americans with Disabilities Act are "doomed to fail," Lee's attorneys argued in a court filing.

Frustration over the outbreak and the state's handling of the pandemic sparked some parents in the Knoxville area on Monday to keep their children home for the day. Others held signs outside school buildings demanding that officials implement stronger virus-protection protocols.

Last week, Education Commissioner Penny Schwinn announced that schools and individual classrooms struggling to manage the COVID-19 surge could request a temporary shift to remote instruction if a need is shown.

Kruesi reported from Nashville, Tennessee.