Class Action Claims Tennessee Gov.’s Exception to Mask Mandate Discriminates Against Disabled Students

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Tennessee Governor Bill Lee’s executive order allowing schoolchildren in Shelby County to opt out of the county’s mask mandate discriminates against children with disabilities and has put them at “severe risk of illness and injury,” according to a proposed class action filed August 27.

The 29-page case, filed by two school-aged children with disabilities through their parents, claims Executive Order No. 84, which was signed by Governor Bill Lee on August 16, forces the parents of disabled children to “make the impossible decision” of choosing between pulling their children out of valuable in-school learning or putting them at risk for “severe reactions or death as a result of COVID-19.”

According to the lawsuit, children with disabilities are more vulnerable to the effects of the virus and, due to their disabilities, are often prevented from taking certain preventative measures such as wearing masks or getting vaccinated. Thus, these medically vulnerable children must “rely on [their] community” to take steps to prevent the spread of COVID-19, the suit relays.

The lawsuit stresses that virtual learning has, over the course of 2020, resulted in “significant learning loss” and is often not a suitable replacement for the hands-on attention and specialized in-person programs required by some disabled children. According to the case, disabled students whose parents choose to remove them from Shelby County schools in order to protect their health are thus deprived of the benefits of an in-person education as a result of their disabilities, which the lawsuit claims violates both the Americans with Disabilities Act and the Rehabilitation Act of 1973.

All told, the case alleges defendants Governor Lee and Shelby County have violated federal law by giving parents of disabled students a “brutal choice” between an education for their children and their children’s health:

The lawsuit explains that Governor Lee’s August 16 executive order allowed parents to opt out of the mask mandate imposed by Shelby County Health Department’s Amended Health Order No. 24, which required Shelby County schoolchildren from daycare through grade 12 to wear masks indoors regardless of their vaccination status. The order states that parents or guardians have to affirmatively “notify[] in writing the local education agency or personnel at the student's school” to opt out of the mandate. Masking and social distancing, the case says, have proven to be effective in preventing COVID-19 transmission in schoolchildren, many of whom are unable to get vaccinated given the COVID-19 vaccine has not yet been approved for children younger than 12.

The case alleges that Executive Order No. 84 has allowed more than 1,392 students in Collierville schools and over 1,000 students in Germantown Municipal schools, for instance, to opt out of the county’s Amended Health Order No. 24, which was in effect until August 27. Health Order No. 25, which is effective from August 31 to September 30, includes the governor’s order as an exception to the mask mandate, the suit adds. As a result of Executive Order No. 84, the lawsuit alleges, “hundreds of students” in Shelby County are attending school without masks, thus exposing children with disabilities to a higher risk of “serious complications or death” due to COVID-19.

The case goes on to allege that students in Shelby County are “uniquely vulnerable” to the effects of COVID-19 given “a higher than usual number” of them suffer from conditions such as obesity, diabetes, hypertension, poor diet, asthma and immunosuppression, which according to the CDC make them “medically vulnerable to and at severe risk” of the disease. Per the suit, Shelby County had, as of August 11, 1,435 confirmed cases of COVID-19 in schoolchildren “diagnosed in just two weeks.” While COVID-19 poses a threat “to children everywhere,” those in Shelby County, many of whom are especially vulnerable to the disease, are at a heightened risk, the lawsuit claims.

The case seeks a temporary restraining order barring Governor Lee from enforcing Executive Order No. 84 and an injunction ordering Shelby County to enforce Health Order No. 25 and require students in the county’s public schools to wear masks without the exception ordered by the governor.

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