Schools claim they are “failing” due to mask order

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Knox County’s public schools are doing everything they can to comply with a court-ordered mask mandate imposed to protect severely disabled children — and they are “failing,” according to court records. 

The main reason that system officials have been unable to do all that’s been asked of them is because the order doesn’t allow enough exemptions to the requirement that everyone on school grounds don a mask — at least, that’s the short version of a document filed in court Monday by the school system’s attorneys. 

The argument was made in the course of a lawsuit filed last month by the parents of four disabled Knox County Schools students who argue their children’s rights under the Americans with Disabilities Act (ADA) have been violated by the system’s lack of a mandatory mask policy. 

U.S. District Judge J. Ronnie Greer — a Republican who was appointed by George W. Bush in 2003 — handed down a temporary order requiring Knox County to re-institute the mask policy it used in 2020-21 until the lawsuit is resolved.

Greer’s order has triggered both praise and derision. Parents and students opposed to the mandate have taken part in protests that include refusing to wear a mask, staying home from school and picketing with signs.

In fact, the chaos purportedly caused by anti-mandate activists (many of them organized through the local Facebook group Knox County Parents Against Mandates) was cited by the school system’s attorneys in a recent bid to do away with the mask order. They also argued that medical exemptions should be granted for many categories of students who are disabled, saying that Greer’s initial order (which allows only autistic students and those with tracheotomies to skip wearing masks) is far too restrictive. 

But the plaintiffs’ attorneys, Justin S. Gilbert and Jessica F. Salonus, argued in a motion filed Monday that the reasons cited by the Knox County system are nowhere near compelling enough to consider withdrawing the order. 

“The Court already heard the evidence in a full day’s hearing during which Knox County testified that it can in fact, and did in fact, implement a universal masking policy the previous school year. The Court already determined that Plaintiffs, not Knox County, are likely to succeed on the merits, the status quo is health-threatening, and the public interest favors the reasonable accommodation of universal masking,” they wrote in their motion. “Medically, Plaintiffs have agreed that exemptions should be made for children (and adults) with disabilities that make them unable to wear masks, though it is the rare situation.”

Turning their attention to the protesters, they concluded by saying that those breaking the rules need to be punished rather than indulged.

“Knox County’s remaining objections, it seems, involve identity politics or the occasional rabble-rouser having no medical or legal voice; they should not receive a platform. As Knox County’s own motion illustrates, any mayhem they cause must be dealt with through truancy measures and discipline available to Knox County, not an extraordinary motion to this Court asking for a reversal that would endanger the health and safety of students with disabilities during a pandemic,” the lawyers said.

On Friday, anti-mandate activists vowed to keep their kids home as part of a “Freedom Friday” protest, but attendance records showed that few apparently went through with it, officials said. 

The student attendance rate was 89.7 percent on Friday, which is only a percentage point or so lower than recent norms.

“Our attendance numbers were slightly lower than the rest of the week, so it is possible that the stay-at-home protest had some impact,” said system spokesperson Carly Harrington. “Also, Fridays generally result in lower attendance.”

On Monday, however, it was clear that anti-mandate sentiment was having a lessening impact on school operations. 

On September 28 — the first day of the mandate — 722 students were isolated from their peers for refusing to wear a mask, including 207 elementary, 235 middle and 280 high school students. By Monday, however, that number had dropped to only 377, including 127 elementary, 131 middle, and 119 high school students, Harrington said. 

While both sides agree that Greer’s initial order was too restrictive when it came to granting exemptions to the mask requirement, they disagree over exactly how to remedy the problem, court records show.

A suggestion of the plaintiffs, for instance, to require students to have a note from “an individual’s treating” physician before an exemption is granted is a poor idea, say David M. Sanders and Amanda Lynn Morse of the Knox County Law Director’s office.

“First, not every student with a disability has a ‘treating physician’ who will feel comfortable drafting an exemption note at all, much less without an appointment,” they said in a Monday motion. “Clearly, not every student within Knox County has the privilege of quick and routine access to the same medical professional. For example, students in foster care are often either moved from one to the other, necessitating a change in physician each time, or are seen by a rotating cast of physicians on only a yearly basis.”

They also accused the plaintiffs and Greer of improperly focusing on physical harm to the exclusion of the full range of problems that students and educators must cope with. 

“As discussed, extensively, by KCBOE in previous filings, there are many reasons a student will be unable to tolerate or wear a mask. A student may not be able to physically tolerate a mask due to skin or sensory sensitivities, or they may not be developmentally or intellectually able to understand why a mask is necessary and thus either refuse to keep it on or refuse to put it on in the first place,” the motion says.

“Additionally, a student may not be able to behaviorally wear a mask due to a mood dysregulation or emotional disturbance issue. All of these students have the right to receive their education in accordance with the IDEA,” the motion continues. “There are even instructional reasons why a student may be exempted from mask wearing, such as a severe speech impairment where speaking through cloth or only receiving instruction from muffled adults will significantly impact that student’s ability to improve and expand his/her speech capabilities; would it medically harm that student to wear a mask or only be taught by masked teachers? Perhaps not, but failing to develop their speech skills now, will have a lifelong impact on that student.”

They added: “This is why the insistence on linking an exemption to physical inability to wear a mask is so harmful. With all due respect to medical professionals, they typically see children for an hour or two a year, at most. Teachers and other staff spend over 1,200 hours with a student each year. A ‘treating physician’ is simply not qualified to determine if a student is instructionally or behaviorally able to wear a mask.”

The attorneys also pointed out there are no fewer than 13 categories of educational disabilities and not all of them require medical proof. 

They also took issue with a suggestion made by the plaintiffs that school system officials might allow themselves to be swayed by intense political pressure to grant unnecessary exemptions.

“Everyone agrees that the system worked last year. There is no reason to presume that KCBOE will attempt to subvert the intentions of the Court when there is no evidence that would happen. Contrary to Plaintiffs’ assumption, KCBOE is doing everything possible to comply with the Court’s directive. Staff are spending hours of time with our most impacted students trying to get them to wear a mask. KCBOE is not only losing instructional hours with a population that needs every minute of instruction that they can get, but KCBOE’s efforts are failing. Despite intense efforts by KCBOE staff, students who desperately need an exemption are being sent home daily because KCBOE is unable to grant an exemption,” they wrote.

“KCBOE teachers and administrators have spent years working with these students, they know them and their struggles,” they continued. “KCBOE is asking this Court to let its staff do their job, let KCBOE serve and educate students by making individualized determinations of mask exemption so that this ongoing litigation does not continue to harm students with disabilities in the meantime.”

Sanders and Morse asked Greer to rule on the matter as soon as possible. 

Since the pandemic began in early 2020, at least 849 people in Knox County have died and 1,820 have been hospitalized out of 75,378 who have been infected, according to the county Health Department. 

Records show that 202 people between the ages of 18 and 64 have died, with the remaining 647 fatalities being people 65 years of age or older. No one under the age of 17 has died from COVID in Knox County so far, although at least 47 have been hospitalized.

Statewide, at least eight children under the age of 10 plus 15 patients between 11 and 20 years of age have been killed by the coronavirus, according to state health officials.

There were 213 cases reported in the Knox school system on Monday, including 175 students and 38 staff members out of an estimated 2,798 active infections countywide, according to the KCS COVID dashboard. 

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

Published on October 5, 2021.