Shelby County families seek court’s stop to Governor Lee’s executive order

Published: Sep. 9, 2021 at 5:15 PM CDT
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MEMPHIS, Tenn. (WMC) - Attorneys for two Shelby County families suing Tennessee Governor Bill Lee for allowing kids the option to not wear masks in school argued their case in a Memphis federal courtroom Thursday.

According to the lawsuit, the families say Lee’s executive order violates the rights of students with disabilities who need protection from COVID-19 in the classroom.

Currently, U.S. District Judge Sheryl Lipman has placed a temporary restraining order on Lee’s executive action allowing students in Tennessee to opt out of mask mandates in class, but that restraining order only lasts until September 17.

That’s why two sets of Shelby County parents, whose children have disabilities, are asking for a preliminary injunction to keep that restraining order in place until this case goes to trial, or a final decision is made.

In Thursday’s preliminary injunction hearing, both the plaintiffs and the defendant had the chance to enter evidence and call witnesses to prove their case.

Plaintiffs argued the rights of students with disabilities are violated by Lee’s executive order under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.

Lawyers said the students named face the threat of serious illness or death due to COVID-19 if they are in class with no mask mandate.

“We’ve always argued that this case has always been about kids with physical disabilities who are unable to attend school because they are at a high risk of death or severe illness because of COVID,” said Brice Timmons, the lawyer for the plaintiffs.

Theresa Nicholls, assistant commissioner of special populations within the Tennessee Department of Education, was the only witness called to the stand. She was called by the defendant, lawyers for Lee.

Nicholls told the judge the foundation of her work is the ADA and Individuals with Disabilities Education Act (IDEA).

Nicholls said her division has answered a lot of districts’ questions about the executive order and has sent out several memos throughout the pandemic to make sure IDEA, which applies to students with disabilities who need specialized instruction, is adhered to with any pandemic protocol.

The state said this case shouldn’t be in court because IDEA allows students and families to file due process complaints to accommodate alternative learning plans.

But the plaintiff lawyers said IDEA only includes students with disabilities that would need specialized learning, not all students with disabilities.

The state also argued resources through the department of education can help districts come up with other mitigating strategies among masked and unmasked students, like staggering schedules between the two groups.

“I heard this very explicitly in the courtroom. The state is asking the school districts create segregated environments for disabled and nondisabled. I thought separate but equal was over, but I guess we’re going to argue that again,” Timmons said.

One of the families named in the lawsuit said it received a threatening message after filing the suit. It’s now under investigation by police.

The message was presented to Lipman Thursday who said U.S. Marshals will be alerted to threats like it.

Parents not involved with the lawsuit showed up to court wanting to see the preliminary injunction denied.

“My children, I’m not worried about them,” said Shelby County resident Sabrina Byrd. “They have been unmasked. They have been healthy this entire time. Obviously, if it’s still going on, the masks aren’t working.”

Lawyers for Lee left court Thursday without talking to journalists.

The request for a preliminary injunction is now under advisement by Lipman. It’s likely she will issue her ruling before the temporary restraining order ends September 17.

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