Mask mandate appellate battle continues

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The Knox County Board of Education (KCBOE) has asked a federal appeals court to end a court-ordered “mask mandate” in a case that pits a handful of disabled children against both the school system and Tennessee Governor Bill Lee.

In a motion filed last week in the U.S. Court of Appeals for the Sixth Circuit, Knox County’s attorneys argued the judicial panel should remove the preliminary injunction handed down September 24 by U.S. District Court Judge Ronnie Greer that requires face masks to be worn in all county schools to protect disabled children from COVID-19. 

“A stay is appropriate in this matter because KCBOE can demonstrate a strong likelihood of success on the merits,” wrote David M. Sanders and Amanda Lynn Morse of the Knox County Law Director’s office.

“KCBOE and its students face irreparable harm if the injunction is permitted to continue. Finally, the public interest lies in permitting KCBOE to follow policies adopted by its elected board rather than a Court’s Order. For these reasons, KCBOE respectfully requests that the Court enter an order staying the preliminary injunction until resolution on appeal,” they said.

The legal maneuvering has been part of a lawsuit filed in September by the parents of four disabled Knox County Schools students who argued their children’s rights under the Americans with Disabilities Act (ADA) were being 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 requiring Knox County to re-institute the mask policy it used in 2020-21 until the lawsuit is resolved. He also blocked Governor Lee’s controversial Executive Order 84, which allows parents to exempt their children from covering their faces, from applying to Knox County during the litigation. 

Greer’s rulings have triggered both praise and derision, with hundreds of parents and students opposed to the mandate taking part in numerous protests and acts of civil disobedience that include picketing, refusing to don masks in class, or even withdrawing from the public schools entirely.

“KCBOE does not dispute that face masks, in combination with other mitigation strategies, appear to reduce the rate at which COVID-19 may spread. However, face coverings do not stop or fully prevent the spread of COVID-19,” wrote Sanders and Morse. “Plaintiffs’ medical expert agreed that the best way for a medically compromised child to stay safe from COVID-19 is to enroll in virtual schooling.”

They also argued that a mask mandate isn’t a reasonable accommodation under the ADA.

“KCBOE began implementing the Court’s injunction and as the record before the District Court showed, there was an immediate resistance that resulted in hundreds of children being removed from school each day. KCBOE acknowledges that the number of students engaging in obvious non-compliance is less than 1% of the student population but KCBOE must educate all of the children enrolled, not just 99% of them. A reasonable accommodation is inherently unreasonable when it impedes the rights of others,” they said.

“The District Court’s mandate represents a breathtaking expansion of the ADA because it imposes the reasonable accommodations upon each of 60,000 students within KCBOE. Just as the mask mandate is fundamentally altering KCBOE’s programming, the mask mandate is infringing on other students’ fundamental right to an education and therefore cannot be a reasonable accommodation,” they continued.

They also repeated an argument they’ve made in earlier filings that the school system has already offered a reasonable accommodation to the children. 

“KCBOE has provided a reasonable accommodation to the Plaintiffs through its virtual schooling program. A plaintiff is not entitled to ‘every accommodation he requests or the accommodation of his choice.’ Therefore, when an individual already has ‘meaningful access’ to a benefit to which he or she is entitled, no additional accommodation, ‘reasonable’ or not, need be provided,” they said.

“KCBOE has created three virtual schools that comply with all state standards regarding teacher licensure, curriculum materials, educational programming, class size, scheduling, and state testing … The chief difference between virtual and in-person schools is that each student is at home and video calling into the classroom…Plaintiffs assert, without factual or legal basis, that virtual schools are not a reasonable accommodation. The only argument they have put forth is that that virtual instruction caused “substantial harm” in 2020 and vague testimony by medical professionals that in-person education is superior to virtual education,” they continued.

They concluded by saying, “The events which have unfolded since this Court’s decision demonstrate that students have already faced irreparable harm. Unlike the Plaintiffs’ theoretical denial of access, students across Knox County are being denied actual access to KCBOE’s programming because they must be sent home if they refuse to wear masks.

“In addition, COVID-19 is a rapidly changing virus that requires government entities to respond to ever-changing community conditions. Vaccinations for COVID-19 are now available for children ages 5-11. Given the need for flexibility to manage a COVID-19 response, it is the public interest to stay the injunction and permit KCBOE to determine the mask policy for schools based on relevant and often-changing community factors.”

Lawyers for one of the children, however, filed a reply to the school system’s motion on Tuesday. 

“Although not entirely clear, the thrust of Knox County’s motion seems to be that it wants to omit masking as an accommodation during this appeal because, it says, that measure is not reasonable, and 1% of students refuse to mask. However, this particular case … features some of the strongest and most compelling evidence of the need for universal masking. It is not possible that Judge Greer made a clear error. To the contrary, he acted to save lives,” wrote plaintiffs’ attorneys Justin Gilbert and Jessica Salonus.

Conditions in the school system were “dire” when the lawsuit was filed in September, with an estimated 90 percent of students not wearing masks despite hundreds of students falling ill with COVID.

“Without masks, the Delta variant was wreaking havoc in Knox County schools because Delta is ‘hugely transmissible,’ ‘replicates so quickly,’ produces a high amount of virus in the nose, and the immune system ‘can’t quite catch up to it.’ Knox County offered no medical evidence at all,” they wrote.

“It is very difficult to follow Knox County’s basis for seeking a stay. After all, it concedes that masking is effective scientifically; that, operationally, it has successfully re-implemented its own masking policy from a prior year; that ‘effectivity of masking’ is not even an issue; that Knox County has a 99% success rate with masking; and, without masking, it would have violated the ADA,” they said.

“In the end, the mask mandate, as Knox County concedes, has enabled all at-risk students to enjoy reasonably safe entry—even though not 100% risk free—to the schools. No longer must they be kept at home, or educated ‘remotely’ and segregated unto themselves through “virtual education,” they continued.

Gilbert and Salonus accused the school system of advocating a type of “segregation” when it comes to the students whose lives might be threatened by the coronavirus.

“Requiring virtual schooling for children with disabilities violates the integration mandate of the ADA by isolating and treating them differently. Even the new state law creating a ‘bubble effect’ around children who are physically present at school, in lieu of universal masking, violates the integration mandate and can be stigmatizing,” they argued.

There’s been no indication when the appellate court — which sits in Cincinnati, Ohio, and handles cases from Kentucky, Michigan, Ohio and Tennessee — will issue a ruling. 

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

Published on December 15, 2021.