A proposed class action alleges Tennessee’s ban on mask mandates has harmed students at a severe risk of illness due to COVID-19 and its variants as a result of their disabilities, and made it impossible for public school districts to comply with the federal Americans with Disabilities Act and Rehabilitation Act.
The 39-page lawsuit against Tennessee Governor Bill Lee and Tennessee Department of Education Commissioner Penny Schwinn argues that the ban on mask mandates, signed into law by Lee on November 12, 2021, has created “inconsistent and chaotic approaches” in the state’s school districts while subjecting students to the loss of state or federal funding.
According to the suit, the mask mandate ban in Tennessee interferes with, obstructs and infringes upon the rights of all students with a disability who require the protection afforded by universal masking in a public school setting. The lawsuit moreover contends the Tennessee ban on school mask mandates intends to work as a de facto amendment to the ADA and Rehabilitation Act, as well as the American Rescue Plan, by imposing limitations on the mechanisms by which the laws operate.
Further, the ban on mask mandates amounts to an attempt by the Tennessee General Assembly to “weaken and/or nullify federal law” by arbitrarily and capriciously limiting the statutory remedies available to students with disabilities, the case claims.
The filing lists that disabilities, as they relate to proposed class members, include asthma, chronic obstructive pulmonary disease, congenital heart disease, coronary artery disease, chronic liver or kidney disease, neurological or developmental disabilities, cancer, muscular dystrophy, blood disorders, compromised immune systems and inherited metabolic disorders.
The eight minor plaintiffs on whose behalf the case was filed are all students with disabilities who the lawsuit says are medically vulnerable to severe infection and/or death from COVID-19 and its variants.
“For these students to enjoy safe passage into their existing school buildings, classrooms, and extracurricular activities they require the reasonable modification of universal masking available under the ADA and Section 504,” the suit says.
The lawsuit states that prior to the passage of the state’s mask mandate ban, three U.S. district courts in Tennessee, through preliminary injunctions, enjoined an executive order that attempted to impose an opt-out requirement for mask mandates as interfering with federal rights afforded by the ADA and Section 504. According to the complaint, the mask mandate ban goes a step beyond Executive Order 84’s primary objective.
“It is a facial attempt to undermine or displace the operation of the ADA and Section 504 in violation of the Supremacy Clause of the United States Constitution,” the lawsuit alleges. “It discriminates against individuals with disabilities in violation of the Fourteenth Amendment’s Equal Protection Clause. Indeed, every Federal District Court in Tennessee has already ruled that the State may not interfere with such federal rights.”
The plaintiffs stress that masking is necessary to prevent the spread of COVID-19 and its variants, and protects students with disabilities who will be or are placed in close proximity to unmasked students and school staff.
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