Parents ask judge to order mask mandate

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Protesters gather outside the Andrew Johnson Building immediately prior to last week’s called meeting of the Board of Education. The Board shot down a proposal to require masks to be worn on school property, triggering a federal lawsuit. Photo by Moira Charnot.

“Due to the ongoing spread of Covid-19, all Knox County Schools will remain open in an effort to thin out the population.” 

So said a popular parody of the school system’s official Facebook page that circulated among local social media users over the weekend. While it was obviously an exercise in dark, tongue-in-cheek satire, it clearly struck a nerve with many Knox County students and their parents. 

For some, in fact, it may have hit a little too close to home. 

To the parents of three disabled Knox County Schools (KCS) students, the lack of a so-called “mask mandate” to mitigate the spread of COVID isn’t a laughing matter. It’s a life-and-death issue, and they’ve filed a federal lawsuit to force KCS officials to require that masks be worn on school property. 

They’re also targeting Tennessee Gov. Bill Lee, who recently issued an executive order that effectively guts any potential masking requirements by allowing parents to exempt their children from covering their faces. 

“The inaction of Knox County, and the action of Governor Lee’s Executive Order, places children like (the plaintiffs) in an impossible dilemma: risk their life to obtain the basic fundamental right to education or stay home and fall further behind academically, socially, and mentally from lack of access to school,” says the lawsuit, which was filed Friday in U.S. District Court in Knoxville.

Government offices were closed Monday for Labor Day, but KCS spokesperson Carly Harrington sent the following text message in reply to a query from Hard Knox Wire: “As of Friday, I was told that the lawsuit had not been officially served. Nevertheless, we do not comment on pending litigation.”

Gov. Lee’s office couldn’t be reached for comment.

The lawsuit is the latest move in an increasingly bitter battle over how schools should respond to the COVID-19 pandemic, which is now impacting a third academic year. The latest disputes have been triggered by the Delta variant, which has spread like wildfire through school districts throughout the Southeast U.S. where conservatives have succeeded in blocking anti-COVID measures like mask requirements. 

Gov. Lee’s administration has ruled that local districts won’t be allowed to take the kinds of aggressive precautions taken in the 2019-20 and 2020-2021 school years to prevent the spread of COVID. For instance, school districts aren’t allowed to move to online learning no matter how severe an outbreak becomes — only individual classrooms or schools can do so, and only after receiving a waiver from the state. 

Lee has also rendered moot any attempts by local districts to impose mandatory masking by issuing Executive Order No. 84, which permits parents to exempt their children from such policies.

In Knox County, parental outrage over the number of cases has led to protests, a “Sick Out” where parents kept their kids home from school, and other efforts to pressure the Board of Education to take more aggressive steps. They failed, however, to convince the Board to make the desired changes at a special called meeting last week.

Then, only three days after the Board refused to yield to their demands, KCS officials got word that the state Department of Education had approved their request to move two Knox campuses — Central High School and Austin-East Magnet High School — to online learning until Sept. 13.    

The lawsuit filed Friday doesn’t list any KCS officials, such as Superintendent Bob Thomas, as defendants. Instead, the families are suing Lee and the whole Knox County government.

The families’ lawyers, nevertheless, have made it clear that their targets are both the county school system and the governor. They are seeking declaratory and injunctive relief, which means they’re asking Judge Greer to force the defendants to comply with their demands rather than seeking a sum of money beyond attorneys’ fees and court costs. 

The attorneys for the families, Justin S. Gilbert and Jessica F. Salonus, are basing their legal strategy on the Americans with Disabilities Act (ADA), which requires schools to make “reasonable modifications” when necessary to ensure that students with disabilities receive their legally guaranteed education, court records show.

They are asking Judge Greer to order the schools “to enforce a mask mandate” and block Executive Order 84. The attorneys are also asking that the case be granted class action status. 

The children are identified only by their initials in public court documents to protect their privacy. The children — ages 8, 10, and 12 — are zoned to attend Cedar Bluff Elementary School, West Valley Middle School and Beaumont Magnet Academy.

 They are each classified as disabled due to health conditions such as chronic lung disease, autoimmune disease, brain malformation and heart disease, according to court records.

While children are usually less vulnerable than adults to severe illness or death caused by COVID, children with certain health problems — such as those listed in the lawsuit — are at a much higher risk of developing life-threatening complications, according to health authorities.

“Due to their disabilities, they all experience a greater risk of contracting COVID-19, with greater consequences. However, the state and school district can seriously mitigate these risks through community masking practices and social distancing,” the lawsuit states.

“Why masks? Because the cloth layer blocks the droplets from releasing into the environment, along with the microorganisms these particles carry. To be more specific, masks block the large droplets (‘20-30 microns and up’) as well as finer droplets, too,” according to court documents.

The lawsuit goes on to describe a child in Maryville who was placed on a ventilator last month “with fluid in her lungs, unable to communicate with her parent, her parent being confronted with questions about whether to resuscitate.” 

The lawsuit argues that masking is an “entirely reasonable modification” and point out that even Gov. Lee has been quoted as saying, “If you want to protect your kid from the virus or from quarantine, the best way to do that is to have your kid in school with a mask.”

The lawsuit then goes on to cite some of the health authorities who have recommended universal masking, such as Duke University, the Centers for Disease Control, the American Academy of Pediatrics, and the University of Tennessee Health Sciences Center.

 “Since school reopened in 2021, in Knox County, COVID-19 infections among school aged children have increased substantially. As of September 2, 2021, Knox County schools reported 750 known and active cases among students and an additional 140 cases among staff members. And as of September 1, 2021, one out of every five students was not even attending school, with 193 new active cases reported in a single day,” court records say.

“Despite the soaring numbers, Knox County has not adopted a masking mandate for its children in public schools. And even if they did, the Governor’s order says parents can simply ‘opt out’ and risk injury or death to other vulnerable children,” according to the lawsuit.

The School Board is scheduled to meet at 5 p.m. Wednesday in the Main Assembly Room of the City-County Building.

There were 679 active cases in the school system on Friday, the last day of school before the Labor Day weekend, including 594 students and 85 staffers out of an estimated 4,920 cases countywide. 

Although no children have died from the disease in Knox County, there have been 16 pediatric deaths in Tennessee, six of those in the past month. Since the pandemic began in early 2020, at least 707 people in Knox County have died and 1,567 have been hospitalized out of 62,175 who have been infected, according to the county health department. 

J.J. Stambaugh can be reached at jjstambaugh@hardknoxwire.com. 

Published on September 7, 2021.