Masks still required for Shelby County students as judge continues block of Gov. Lee's opt-out order

Schools in Shelby County will require masks indoors at least through the end of September, but the requirement could stick around much longer.

U.S. District Court Judge Sheryl H. Lipman ruled Friday to block Gov. Bill Lee's mask opt-out executive order through a preliminary injunction.

The injunction allows for the Shelby County Health Department to implement its mask requirements and precludes students from opting out of the requirement with a note. 

It was not immediately clear how long the injunction will last.

Preliminary injunctions typically last the duration of a lawsuit, attorneys have explained. Bryce Ashby, attorney for the parents, said the lawsuit could last months. 

Lipman's ruling is a "common-sense decision" that allows the parents who brought the suit to "breathe a sigh of relief," Ashby said. 

"This really eliminated the politics that had been inserted...when parents are just trying to send their kids to school to get them an education and to not be concerned every moment about their safety," Ashby said Friday morning. 

At a press event outside of Knoxville Friday afternoon, Lee reiterated his stance that he believes parents make the best decisions about a child's health.

"Ultimately those parents should have that final decision and that's the reason we created an opt-out, while at the same time preserving the ability for a school district to impose a mask requirement," Lee said in response to a question about the judge's order. 

The federal government has told Lee and Tennessee Education Commissioner Penny Schwinn it views the opt-out order as an effective ban on mask requirements because it removes the option for schools to make mask requirements universal. The state education department is under federal investigation for the order. 

More:Federal government launches civil rights investigation into Tennessee's school mask policy

"I can't comment on pending litigation," Lee continued, "but I think that what we have tried to do is recognize the value of the parent's role..."

The federal lawsuit was brought by the children of three families who have a combination of school-recognized disabilities and special health needs that make them more susceptible for contracting severe cases of COVID-19. 

Attorneys for the parents would like the court to formally recognize them as a class, meaning the current students in the suit are part of a collective group of public school students in Shelby County who can't get vaccinated or have an illness that makes the vaccine less effective or makes them more likely to get severe COVID-19. The formal recognition, or certification of that class could impact the longevity of the injunction, Lipman said. 

If the class is not fully certified, the preliminary injunction could be reevaluated, Lipman wrote in the order.  

The injunction could also be appealed by the governor, but would remain in place through the appeals process, Ashby explained. 

"This Office is reviewing the Order and assessing our options," Leigh Ann Jones of the state's attorney general's office told The Commercial Appeal. 

Lipman's order could soon prove unnecessary if Lee doesn't extend his own Executive Order 84, which allows for parents to opt out of mask orders. That order is set to expire at the end of the day Oct. 5.  

A spokesperson for Lee's office said there are "no updates at this time" on the executive order. 

The Shelby County Health Department's mask mandate is also set to expire soon, on Sept. 30. A new order will be released before the current order expires, Shelby County Health Department spokesperson Joan Carr told The Commercial Appeal. 

Other than that a new order was on the way, Carr said she did not have additional information, such as what the contents of the order will be. 

Without consulting state education officials Lee 'adversely affected right of disabled children,' judge says

The injunction order comes just as Lipman's initial restraining order was set to expire. Issued Sept. 3, it was in place for two weeks, through Friday afternoon. 

Lee's executive order, which allows parents to let their children bypass mask mandates at schools and let them go to class unmasked, violates the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, the lawsuit claims. 

MORE:Teacher, doctors join federal suit against Lee's mask opt-out order as state digs in

While the state has argued the issue is a matter of an education disability law, the Individuals with Disabilities Education Act, Lipman has stated the court's opinion to be in general agreement of the parent's argument, that universal mask mandates are questions of access rather than specialized instruction, which is where IDEA would come in. 

In the order, Lipman writes that the parents are likely to succeed in their claims that the governor's order violates federal disability law and a "universal indoor masking requirement is objectively reasonable."

Lee's order was "the catalyst" for districts being unable to provide reasonable accommodations to disabled students, Lipman said, instead challenging "schools to create more costly and complex measures to protect every child with a disability."

"But for the Governor’s Order, schools in Shelby County would be able to comply (at least in this scenario) with the ADA and Rehabilitation’s mandate to provide access to public institutions to individuals with disabilities," Lipman said. "The injury is distinctly traceable."

The parents have proved the executive order caused irreparable harm, Lipman said.  

One line stuck out to Ashby in particular, about the state's witness, Theresa Nicholls, who, as assistant commissioner for special populations at the Tennessee Department of Education, is the top official for disabled students. She testified she wasn't told about the executive order before it was implemented.

"Without consulting his own education experts on the needs of children with disabilities and going against the public health guidance of local and national medical and public health entities," Lipman wrote, "Governor Lee took an action that adversely affected the right of disabled children to access public education." 

Similar lawsuits underway in East Tennessee, Nashville area

A federal judge in eastern Tennessee heard arguments in a similar lawsuit of Knox County parents Wednesday but had not ruled on the matter as of Thursday. In addition to an injunction, the Knox County parents are requesting the judge order Knox County Schools, the county's public school district, to issue a mask mandate. 

Friday afternoon, two Williamson County families filed a third federal lawsuit claiming the opt-out order violates federal disability law. Parents filed the suit against the governor, the Williamson County Board of Education and Franklin Special School District. Both districts have mask mandates but, under Lee's order, allow opt-outs. 

Third lawsuit:Williamson County families file federal lawsuit against Gov. Bill Lee's mask opt-out order

Dr. Jason Yaun, a Memphis-based pediatrician who is vice president of the Tennessee Chapter of American Academy of Pediatrics, testified in the eastern Tennessee hearing Wednesday. 

The national organization of 67,000 pediatric doctors and its Tennessee chapter have filed briefs of support in both the Shelby County and Knox County cases. 

"The AAP’s strong recommendation of universal masking for students, teachers, and support staff in school has remained consistent from the beginning — because masks are a safe, effective, and critical infection control measure," reads the brief in support of the Shelby County parents.

Children have been disproportionately infected during the recent surge of COVID-19 in Tennessee, where the case rate adjusted for population has recently been the worst in the country.

Pediatric COVID-19 cases account for a third of all active cases in Shelby County, as of Thursday. 

Active cases by age are unavailable at the state level. Data for total cases and inactive cases by age group across the state shows that active cases among people 20 and younger represent about 29% of all active cases in the state.

Shelby County, a defendant in the lawsuit brought by the parents, separately filed suit and called for an injunction against the order the day before the parents filed suit. Attorneys for the county have regularly supported the parents. 

Another injunction hearing in the county's case against the governor is scheduled for Oct. 1.

Students masking up at municipal schools after order, districts say

Since the issuing of the temporary restraining order, spokespeople for the municipal school districts, which allowed students to come to class maskless (Shelby County Schools never allowed parents to refuse the requirement) have said students have, for the large part, complied with their mask requirements.

While SCS announced it would require masks on its own in July, the municipal districts in Shelby County adopted mask requirements by way of the Shelby County Health Department's order, issued Aug. 6, right before school began. 

The county issued a dire order at the time, when pediatric cases were elevated, but still fewer, and made up about a quarter of all cases. Pediatric hospitals were pinched by COVID-19 cases and a spike in respiratory syncytial virus, or RSV. Kids were beginning to bear the brunt of COVID-19.

Masks reduce the spread of COVID-19, health department director Michelle Taylor reasoned at the time, and the department's mandate followed federal guidance from the Centers for Disease Control and Prevention. 

“Vaccination is still the best protection against COVID-19 infection,” Bruce Randolph, the health officer, said when the mandate was issued. “But masks also provide protection in crowded indoor settings like schools. Shelby County Health Department also highly recommends vaccination for all parents, teachers and school staff members to protect themselves and school students."

COVID-19 IN MEMPHIS:COVID-19 is spreading fast in Memphis and kids are bearing the brunt

RELATED:More than 2,600 kids in Shelby County have COVID-19. How are they being treated?

At the time, Collierville residents were the most vocal against the mandate, protesting outside city buildings and speaking at county commission. 

Since then, one of the parents suing over the governor's opt-out order has had to report threats to the Collierville police. Lipman, the judge, said any threats, direct or general, should be sent to her office. She alerted marshals to existing threats. 

The threat was the latest example of how masks have grown increasingly political, particularly across the South, as students returned to class amid another surge.

In Collierville, the greatest share of students opting out was 16%, but that was reduced to 12% by the time Lipman issued her order, according to Jeff Jones, a spokesperson for the Collierville district. He attributed the increased masking to "the large numbers of identified close contacts" identified in August. 

There was almost 100% compliance with the mandate the first day it took effect, Sept. 8, Jones said, and unmasked students accepted a mask. Only one non-compliant family had to be sent home. Fewer than five families have told the district the students wouldn't return to school until the mandate was lifted, Jones said. 

"With a district-wide enrollment of 9100, the impact on attendance figures is negligible," Jones said. 

Among the six districts, Collierville, Germantown, Arlington and Lakeland had the greatest percentages of students opting out, each at 12% or greater. At some schools, more than 20% of students had opted out of the mandate before the restraining order was in effect. 

About 4% of students in Millington and 2.6% in Bartlett were unmasked at school when the restraining order was issued.

Bartlett, Millington and Lakeland had no major issues with compliance, district spokespeople said. Arlington had "very little response" following the order. Germantown did not respond.

"As we mentioned in our communication to families following Judge Lipman’s ruling, our primary responsibility is to educate students, and that will continue to be our focus; not what has become the politically charged topic of mask wearing," said Arlington Community Schools spokesperson Tyler Hill. "It is counterproductive for the school district to become entangled in the debate, so we will continue to follow the health department’s or the governor’s guidance, whichever has trumped the other on any given day, around masking as we have consistently done throughout the pandemic."

Laura Testino covers education and children's issues for the Commercial Appeal. Reach her at laura.testino@commercialappeal.com or 901-512-3763. Find her on Twitter: @LDTestino