Judge allows more exemptions in mask mandate

Anti-mask mandate protesters gather at a Knox County Board of Education meeting on Oct. 7. Photo by Moira Charnot.

A federal judge on Tuesday lashed out at the Knox County Schools while also giving the system partial relief from a court-ordered face mask mandate. 

U.S. District Court Judge J. Ronnie Greer amended a preliminary injunction he issued last month to make it far easier for disabled students to “opt out” of the mask order, but stressed that allowing such exemptions had been his intent from the beginning. 

“The Court would be much more sympathetic to the Knox County Board of Education’s argument if not for the fact that it had every occasion, both before and during the preliminary injunction hearing, to argue in the alternative as to what a mask mandate—with exemptions— ought to look like if the Court elected to put one in place, which it ultimately did,” Greer wrote in a scathing opinion handed down Tuesday.

“But the Knox County Board of Education presented no such argument or evidence, yet it now blames the Court instead of itself for its own lack of foresight. Its cry of manifest injustice is therefore at best meritless and at worst disingenuous,” the judge said. 

Knox County Schools spokesperson Carly Harrington said Tuesday night that officials hadn’t had enough time to read the opinion and issue a response.

“We were reviewing it this afternoon and will work on some communication to push out tomorrow,” she said.

Knox County parents on both sides of the debate were pleased to learn that students and employees who can’t wear a mask due to medical problems will be allowed to “opt out.”

“I think it is wonderful for the kids with other disabilities,” said Kellye Rogers, one of the hundreds of parents who have taken part in protests against the mandate. “I still feel like it should be up to the parents if their children wear masks or not but I am happy that there will be exceptions for kids with other disabilities.”

Eric Moore, a pro-mask activist, said he was also pleased that Greer pointed out the shortcomings of the school system’s legal position. 

“The judge has made official and explicit what has been obvious since August: the school board is not acting in good faith or within reason,” Moore said. “His ruling, which has been cited by other federal justices since, is clear and fair. There was need for more flexibility specifically for children and staff with disabilities that are exacerbated by mask wearing, and he showed good reason to allow for those while also keeping the onus of responsibility squarely on the negligent Board.”

The legal maneuvering has been part of a lawsuit filed last month by the parents of four disabled Knox County Schools students who argue their children’s rights under the Americans with Disabilities Act (ADA) have been violated by the system’s lack of a mandatory mask policy. 

Greer — a Republican who was appointed to the bench by George W. Bush in 2003 — handed down a preliminary injunction (a kind of temporary order) requiring Knox County to re-institute the mask policy it used in 2020-21 until the lawsuit is resolved.

Greer’s order triggered both praise and derision. Parents and students opposed to the mandate have taken part in protests that include refusing to wear a mask, staying home from school and picketing with signs.

While both sides agreed that Greer’s initial order was too restrictive when it came to granting exemptions to the mask requirement, they disagreed over exactly how to remedy the problem, court records show.

The school system’s attorneys— David M. Sanders and Amanda Lynn Morse of the Knox County Law Director’s office — accused the plaintiffs and Greer of improperly focusing on physical harm to the exclusion of the full range of problems that students and educators must cope with. The attorneys also pointed out there are no fewer than 13 categories of educational disabilities and not all of them require medical proof.

“KCBOE (Knox County Board of Education) is doing everything possible to comply with the Court’s directive. Staff are spending hours of time with our most impacted students trying to get them to wear a mask,” they argued. “KCBOE is not only losing instructional hours with a population that needs every minute of instruction that they can get, but KCBOE’s efforts are failing. Despite intense efforts by KCBOE staff, students who desperately need an exemption are being sent home daily because KCBOE is unable to grant an exemption.”

They continued: “KCBOE teachers and administrators have spent years working with these students, they know them and their struggles. KCBOE is asking this Court to let its staff do their job, let KCBOE serve and educate students by making individualized determinations of mask exemption so that this ongoing litigation does not continue to harm students with disabilities in the meantime.”

Greer, however, said in Tuesday’s ruling that the Knox County school system was to blame for not giving the judge all the information he needed to make a decision at a hearing held last month. 

“The Court ultimately granted Plaintiffs’ motion for a preliminary injunction and ordered the Knox County Board of Education to enforce—with immediate effect—the mask mandate that was in place in all Knox County Schools during the 2020-2021 school year, as a reasonable accommodation under the ADA for Plaintiffs and Class Plaintiffs,” Greer wrote.

“Dr. (Jennifer) Ker, however, specifically identified individuals with autism and tracheotomies as disabled individuals who may be unable to wear masks, so the Court exempted these individuals from the mask mandate. 

“Beyond Dr. Ker’s testimony, the parties presented the Court with no evidence by which it could determine whether additional medical exemptions from the mask mandate were appropriate. The Court therefore ordered the Knox County Board of Education to file a list of medical conditions that it believed warranted further exemptions from the mask mandate, and it ordered Plaintiffs to respond to that filing.”

Although Greer made it clear that he had no patience for the school system’s attempt to shift the blame, he agreed that the educational needs of students were the priority. 

“Still, the Court will not stand by idly while its preliminary injunction is preventing some disabled students from attending school,” he said. “And nor did the Court intend to stand idly by from the start, which is why it ordered the parties to prepare, on an expedited schedule, a list of medical exemptions in addition to the exemptions for autism and tracheotomies. In any case, Plaintiffs now agree that the Court should permit the Knox County Board of Education to craft exemptions to the mask mandate on an individualized basis.”

Greer said he will allow the schools to operate under the same masking exemptions that were in effect last year “but not without first issuing a parting caveat.”

“The Court reminds the Knox County Board of Education that its school system is no longer under a voluntary mask mandate; rather, it is under a court-ordered mask mandate,” he ruled. “The evidence supports the need for—and the Court ordered—a universal mask mandate, and the Court fully expects its mask mandate to be exactly that: universal, to every possible extent, with ‘very few’ medical exemptions. If the Knox County Board of Education does not comply in good faith with this Order, the Court may impose considerable sanctions against it for civil contempt.”

Greer ordered Knox County officials to file monthly status reports including the number of exemptions granted each month, the names of those exempted, and the specific reasons for their exemptions as well as whether they were exempted last year, he said. 

The first of the status reports — which can be filed under seal — is due by November 1.

J.J. Stambaugh can be reached at jjstambaugh@hardknoxwire.com.

Published on October 13, 2021.