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Judge Blocks Gov. Lee’s Mask Opt Out Order

For the time being, at least, masks must be worn in Shelby County Schools, with no exceptions. On Friday, September 3rd, federal Judge Sheryl Lipman issued a temporary restraining order against Tennessee Governor Bill Lee’s Executive Order 84, which allows parents to opt their children out of mask mandates issued by school districts, such as Shelby County Schools.

Lee’s executive order was issued on August 16th. Shelby County parents of two children with disabilities filed a lawsuit on Friday, August 27th, and filed a Motion for Temporary Restraining Order and Preliminary Injunction. In the wake of a hearing on Monday, August 30th, the federal judge issued the order, which temporarily blocks Lee’s order.

The parents claim that Lee’s Executive Order 84 denies children with disabilities their rights under the American with Disabilities Act by denying them the ability to “access reasonable protection from the threat of exposure” from Covid-19.

“Plaintiffs seek urgent relief preventing the enforcement of Governor Lee’s Executive Order No. 84 (‘Executive Order’), which provides parents or guardians of children in Tennessee the right to opt out of wearing masks in schools, even if the school, school system, local health department or other governmental entity otherwise requires that masks be worn,” the judge’s ruling says.

Lee argued that the plaintiffs have no standing, as the students “have not been excluded from a public service or program.” But, according to the judge’s order, “Plaintiffs offered sufficient evidence at this stage for the Court to conclude that the Executive Order’s opt-out provision interferes with Plaintiffs’ ability to access services at their public schools through a reasonable accommodation — required mask coverings — as required by the 3 Shelby County Health Department’s Health Directives.”

A hearing on the Motion for Preliminary Injunction is set for Thursday, September 9th.

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News News Blog

Department of Education Investigating Tennessee Over School Mask Opt-Outs

The U.S. Department of Education’s Office for Civil Rights (OCR) is investigating Tennessee along with four other states to determine whether statewide prohibitions on universal indoor masking discriminates against students with disabilities.

In a letter to Tennessee’s Commissioner of Education Penny Schwinn, Suzanne Goldberg, the department of education’s acting assistant secretary for civil rights, informed that the investigation would explore if Tennessee’s policy that allows parents to opt out of school mask mandates prevents students with disabilities who have higher risk of severe illness from Covid-19.

Gov. Bill Lee issued Executive Order No. 84 earlier this month allowing Tennessee parents to opt their child out of school mask mandates regardless of school districts policy. 

Goldberg said OCR is concerned that this policy may be preventing schools from meeting their legal obligations not to discriminate based on disability and to provide equal educational opportunities. 

“The Department has heard from parents from across the country — particularly parents of students with disabilities and with underlying medical conditions — about how state bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally,” U.S. Secretary of Education Miguel Cardona said in a press release. “It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve.

“The Department will fight to protect every student’s right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall.” 

Following the announcement of the investigation, Tennessee Senator Raumesh Akbari who represents the Memphis area, urged Lee to rescind his executive order.

“Gov. Bill Lee’s administration should immediately suspend its order negating local mask rules in schools until this federal investigation concludes,” Akbari said. “All our students, including those who have underlying health conditions, deserve access to safe learning conditions.”

Other states being investigated include Iowa, Oklahoma, South Carolina, and Utah. 

This comes days after a class action lawsuit was filed against Gov. Bill Lee and Shelby County alleging that allowing students to opt out of the mask mandate violates the Americans with Disability Act. 

The plaintiffs, two Shelby County families, claim that Executive Order No 84 forces parents of children with disabilities “to make the impossible decision of deciding whether to pull their children out of in-person learning or risk severe reactions or death as a result of COVID-19.” This is a “brutal choice,” the lawsuit reads. 

“Excluding children from the public school classrooms because of a disability is precisely the type of discrimination and segregation that the ADA and its amendments aim to prevent and specifically prohibit,” the lawsuit reads. 

The plaintiffs are asking the court to block the governor from enforcing Executive Order No. 84, while requiring Shelby County to enforce the countywide mask mandate in schools. 

Read the full complaint here

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Letter From The Editor Opinion

Selfish School of Thought

Careful readers of this paper may notice that we have changed our style guide on “Covid-19.” For more than a year, the Flyer style was to capitalize each letter of the word. More and more, it began to feel as though the paper were shouting at the reader, not unlike the sporadic capitalization in the deranged tweets of the former president. So, following the example of a multitude of other legitimate publications, we’re choosing to style the word as “Covid.”

That we have been writing about this disease for long enough and often enough to necessitate not one, but two entries into the style guide is, for me at least, a source of dismay. I’m sure most of us have had some version of this moment — the seemingly innocuous event that reminds you how long we’ve been dealing with this problem. If our governor has his way, it may be never ending.

On Monday, August 16th, Governor Bill Lee issued an executive order allowing parents to opt their children out of mask mandates imposed by local school districts, such as that of Shelby County Schools. SCS Superintendent Joris Ray immediately announced that he was meeting with SCS board members and their counsel to “review the legalities of Governor Lee’s Executive Order 84.” I imagine the same situation is happening in Davidson County and that the state will be hit with a slew of lawsuits. Again.

What worries me is that we continue to allow a fanatical minority to dictate the terms of acceptable behavior. According to a recent Axios-Ipsos poll on mandatory masking in schools, 69 percent of people polled were for the measure. What’s more, 44 percent of Republicans agreed. Let that be a reminder that all this back-and-forth, all this strife and tension, the backsliding after hard-fought gains against the depredations of the disease, is due to the whims of a very small segment of the population.

To me, it seems Lee has sidestepped the (expensive) issue of calling a special legislative session while still delivering up an executive action that will play well on Fox News. “Parents know best” and “the government can’t make my health decisions for me” are old standards, and I’m sure his supporters will eat that up. Getting out of this mess will take work and sacrifice, but that’s a hard sell to voters, and anyway, success isn’t guaranteed. But there’s a vocal segment of the population who will remember this as a stand against tyranny. And those people vote.

“No one cares more,” tweeted Lee, “than a parent.” The problem is that not every parent is a virologist or nurse or medical doctor. Parents may care the most, but caring does not necessarily equal expertise. I have no doubt that my mother loves me, but I also remember that a frequent pastime was taking my sister and me to the library, then retiring to the smoking section of Perkins or CK’s, where she would drink coffee, smoke, and draw while my sister and I read. Sure, we turned out okay (Look, Ma, no asthma!), but I think any random selection of pediatricians would deliver the verdict that the smoking section of a diner does not make the best playground.

So we’re stuck, all of us, bending to the whims of a few because they’re reliable voters who don’t ask for any meaningful change. A viable political candidate, for these voters, is not one who brings jobs to the state or works to improve healthcare access. No, they simply have to tout a gold-star NRA rating, a willingness to waste state funds defending the newest futile and cruel version of a “bathroom bill,” and say something generic about freedom.

But it’s a plywood freedom, a facade, a papier-mâché cutout of some red-white-and-blue fairytale. It’s a freedom without obligation or responsibility, and such a thing is a myth. Anyone selling that version of life is a snake-oil salesman right out of The Music Man.

So, as The New York Times this week reports that the Biden administration is set to recommend booster shots of the Covid vaccine for eligible adults, we see the damage that can be done by those who demand access to society’s benefits without participating in its responsibilities.

I hope those of us who feel that way will abandon this selfish school of thought, step up, and do their part. Get vaccinated, wear a mask, stop hurling insults at healthcare workers under the guise of protest.

In the meantime, I hope we don’t have to update our style guide entry on Covid again.