Shelby County school mask mandate can continue despite new anti-mask law, judge says

A young boy in a beige shirt with a tie-dye mask looks up at the camera in the middle of writing on a worksheet with a pencil as a teacher helps a student in the background
Shelby County’s emergency motion, filed Thursday, asked if a temporary injunction allowing mask requirements in schools will stand after Gov. Bill Lee signs sweeping legislation essentially banning mask mandates in Tennessee public schools. (Carson TerBush / Chalkbeat)

Shelby County will continue to have the authority to issue mask mandates, a federal judge said on Friday, despite a new law that restricts public schools and other government agencies from requiring masks. The opinion allows the county to continue pursuing “reasonable accommodations” to ensure students with disabilities have equal access to education.

At a Nov. 12 hearing, U.S. District Judge Sheryl Lipman of Tennessee’s Western District said her temporary injunction stands, continuing to block Gov. Bill Lee’s executive order permitting parents to opt their children out of school mask mandates. In her written decision, Lipman said the county can enforce its health ordinances regardless of any rule or regulation “that purportedly restrains its ability to provide reasonable accommodations to schools.”

She added, “The Court clarifies that the county’s obligations under the preliminary injunction have not changed in light of the new legislation.”

Lipman originally granted the injunction in September, after Shelby County government and a group of parents filed separate lawsuits challenging the executive order. The order, they argued, breached the Americans with Disabilities Act by endangering medically vulnerable children who are at a higher risk of contracting COVID from unmasked classmates. They also are at higher risk for severe complications, the suit states.

Friday’s decision is the latest in the ongoing political and court battle and came a day after Shelby County filed an emergency motion arguing that the new laws gut the county health officer’s delegated authority and give the state commissioner of health “the sole authority to determine quarantine guidelines, including any closing or restricting of private businesses and schools.” 

The intention behind issuing mask mandates is to keep the community safe, and the local health department is “the best mechanism to do that,” said Tannera Gibson of Burch, Porter & Johnson, who is representing the county.

The governor’s legal counsel, led by Jim Newsom, argued Friday that the “facts on the ground” of the pandemic have changed, making it appropriate for the case to be revisited. Newsom, who works in the state attorney general’s office, said the risk of COVID has decreased since Lipman’s injunction, calling into question whether it’s still appropriate.

Though new cases have been on the downswing since Tennessee’s summer surge, the risk level for unvaccinated people, based on cases and test positivity, remains very high across the state, according to The New York Times.

Lipman sided with the county, though.

“The point of the order was to ensure that the ADA is followed in the county and to ensure that these students — the plaintiffs — have access to education,” she said.

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“In my mind, I never thought that as long as there’s a pandemic, there has to be a mask mandate in all of Shelby County schools,” Lipman added. “The idea is that there has to be reasonable accommodation.”

Universal masking, Lipman said, should be among the accommodations local health departments can consider. “I have a problem with the legislature making that decision,” she said.

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