Tennessee Democrats warn that Republican efforts to undermine mask mandates in schools may trigger lawsuits

August 18, 2021 – Chattanooga Times-Free Press by: Andy Sher – Tennessee Republican Gov. Bill Lee’s new executive order seeking to allow parents with students in Metro Nashville and Shelby County schools to opt their children out of local COVID-19 mask-wearing mandates is falling flat so far with leaders in the two counties.

It comes amid assertions by some critics that Lee’s emergency powers don’t extend that far and would require GOP majority legislators changing state law. Moreover, say some attorneys, including two who are Democratic lawmakers, even that would likely draw court challenges.

Lt. Gov. Randy McNally, the Republican Senate speaker who sought to avoid House GOP efforts to convene in a special session to pass a law blocking districts from imposing student mask mandates, put the Metro Nashville and Shelby County school districts on notice Tuesday that the governor and the General Assembly “cannot and will not allow lawful orders to be defied.” McNally also warned that “if these systems persist in resisting the order, we will have no choice but to exercise other remedial options.” He was not specific.

Many of the state’s 154 school districts are complying with Lee’s executive order, which utilizes an approach similar to one used by Hamilton County Schools. It says COVID-19 masks are required for students but allows parents or guardians to opt the child out of the mask requirements.

Two Davidson County Democratic legislators who are attorneys questioned Lee’s approach Wednesday.

“This doesn’t have anywhere near the legal authority or the details about implementation and process and all the particulars you would expect in an executive order,” said Senate Minority Leader Jeff Yarbro, a Democrat and Nashville attorney. Yarbro said he thinks “the governor’s office has set this up as ‘Let’s just have a fight about masks,’ which I think Lt. Gov. McNally and most people with good sense know is counterproductive to keeping kids in school and keeping people healthy in the state.” Moreover, Yarbro said, if the argument is “‘You cannot have any classrooms where every student is masked,’ I think that’s denying an important choice for families. And I think it’s denying critical protection, especially to those who are immuno-compromised.”

The governor’s office did not respond Wednesday afternoon to Times Free Press requests for comment about that and other criticisms.

Rep. John Ray Clemmons, D-Nashville, also an attorney, charged that Lee, who is running for re-election next year, “is making political decisions that are in his best interests on the fly rather than making sound executive decisions that are in everyone’s interest in a thoughtful manner.” Clemmons said he doesn’t think Lee “has any statutory executive basis whatsoever to issue the type of executive order that he issued.”

Moreover, Clemmons noted, the Tennessee Constitution’s Article 11, Section 12 specifically states that the “General Assembly shall provide for the maintenance, support, and eligibility standards of a system of free public schools.” While virtual learning was heavily relied upon last year by school districts, Clemmons said “we’ve got an issue now where schools are not allowed to provide virtual options to students.” As a result, he added, “you’ve got students who because of their immuno-compromised health status or disability can’t go to school if facial coverings are not required.” “So,” Clemmons said, “those students in that situation are effectively being denied a free public education because of their disability. And that is blatantly unconstitutional under the Tennessee law and arguably under federal law.”

Later on Wednesday in Texas, the group Disability Rights Texas filed a federal lawsuit against Republican Gov. Greg Abbott for his executive order prohibiting schools, cities and counties from mandating masks in schools. The complaint, filed on behalf of 14 students, charges the ban violates protections for students under the federal Americans with Disabilities Act. It alleges the students are at special risk of of COVID-19 because they are too young to get vaccinated.

Efforts to reach Tennessee House Majority Leader William Lamberth, a Republican attorney from Portland, were unsuccessful Wednesday afternoon. Senate Finance Committee Chair Bo Watson, R-Hixson, a local hospital executive, was still at work late Wednesday afternoon and unavailable to discuss the situation.

Rep. Yusuf Hakeem, D-Chattanooga, said he thinks Lee’s executive order “is a half-hearted effort on the part of the governor to satisfy what I believe is a minority of people in the state regarding masks. “I think it leaves the children of the state at risk of contracting COVID and I don’t think it was in the best interests of the children to put forth such an order.” That said, Hakeem noted, “I would be not be surprised if the legislators in the majority party would not find a way to go ahead and find a way for a special session.”