KNOXVILLE, Tenn. — WEDNESDAY UPDATE: A federal judge is expected to rule in the coming days on a bid by Knox County parents who want a mask mandate for local schoolchildren and who oppose Gov. Bill Lee's opt-out order.
Senior U.S. District Judge Ronnie Greer in Greeneville heard arguments from several attorneys Wednesday in the lawsuit filed by the parents of four students age 12 or younger. During the trial, Greer interrupted opening statements from Gov. Lee's attorneys as they said the governor wished he "could order COVID-19 out of schools."
He asked attorneys if it was contradictory to say that after Gov. Lee allowed families to opt-out of mask mandates with an executive order.
"Shouldn't school boards be able to make that decision without the governor?" he asked.
Attorneys representing Knox County Schools also said they were providing reasonable accommodations, pointing to the school system's virtual school programs.
During the trial, they also said that requiring universal masking would deprive children of their rights and "kids without masks would be denied an education." School attorneys also said the judge should not have to weigh in on the issue of masks, because the school board already decided after Gov. Lee signed his executive order.
They called it a political process and said courts should not be involved.
"Should the health and safety of children come above politics?" asked Judge Greer. "We don't allow parents to abuse children, [or] have sex with kids."
One of the plaintiffs said that most students do not wear masks and sit shoulder to shoulder in the hallways, claiming that a mask mandate would help children improve their social distancing and mask-wearing behaviors.
"Isn't the primary concern the health, safety and lives of minor children?" asked Greer.
Knox County attorneys responded, "no." They said the case was about the American Disabilities Act as it applies to mask mandates. They also said that Gov. Lee's executive order makes it impossible to enforce a mask mandate.
Attorneys for the plaintiffs also argue it's against federal law to compel children to go to school without masks because of the ongoing pandemic.
Knox County Schools argued Wednesday that Lee's Executive Order No. 84 makes it impossible to have an effective mandate. Lee is allowing parents who object to masks for their children to decline to follow any school system requirement.
Health experts in court testifying for the plaintiffs said that masks were only effective when everyone within a school building wore them. They said universal masking for everyone in a school was the "primary way to mitigate the spread of coronavirus."
Doctors testifying also said parents don't always make the right decisions, and pointed to the existence of organizations like the Department of Children Services. They also said the American Academy of Pediatrics said children need to learn in person, and virtual learning was not an acceptable substitute because it is better for their mental, physical and behavioral health.
"Knox County is on fire," said Justin Gilbert, an attorney representing the parents.
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TUESDAY UPDATE: The mothers of four disabled or medically compromised Knox County students and two Knox County teachers say it's imperative that the county impose a mask mandate for children and that the governor's order allowing parents to opt out of such a measure be halted.
The mothers are suing Gov. Bill Lee and the Knox County Board of Education in U.S. District Court. The case is being heard in Greeneville by Senior U.S. District Court Judge Ronnie Greer.
The judge is set to hear the case 9 a.m. Wednesday in Greeneville
Three parents and their children filed the original action earlier this month against Lee's Executive Order No. 84, giving parents the option of not having their children wear masks at schools. A fourth parent and child have joined the complaint seeking what's called a temporary injunction.
It also now identifies the board of education as a defendant and not Knox County as originally filed.
Attorneys Justin Gilbert of Chattanooga and Jessica Salonus of Jackson, Tenn., represent the parents.
Put plainly, they argue, COVID-19 and the current delta variant can be deadly and children with compromised health are particularly vulnerable. All students and teachers, however, would benefit from a Knox County mask mandate, they argue.
"Thousands of children attend school in Knox County. Teachers, custodians, bus-drivers, and other employees do as well. A bi-product of helping children with disabilities through an injunction is that masking helps the entire public-school community — thus, it is clearly in the 'public interest,'" the lawyers argue.
The mother of an 11-year-old girl with asthma said in a court filing that her daughter's safety is at the "whim" of other parents who decline to require their child to wear a mask at Farragut Middle School.
"Given our experience with the effect of asthma alone, it is not safe to M.K. (the child) to be at school with unmasked and unvaccinated individuals -- students and adults -- while COVID and the delta variant continue to spread," the mother states. "M.K.'s classes are large, with over 50 kids in some classes such as Choir."
Teachers Tracy Riggs and Ashley Paquette also offer their concerns about the lack of a mask mandate and the ability of parents to opt out.
RELATED: 'I shouldn't have to be scared' | KCS teacher resigns as COVID cases surge across East Tennessee
WBIR featured Riggs' decision earlier this month to resign out of concerns about school leaders' refusal to impose a mandate.
"I have an underlying medical condition that makes me more susceptible to serious illness or death from contracting COVID-19. With the rising Covid numbers, and the Board of Education’s vote against masking, I was forced to make the difficult decision to protect my own health and I resigned my position last week," Riggs, who taught at Cedar Bluff Middle School, states.
"I made this declaration because I believe it is in the best interest of students with disabilities, as well as teachers, custodians, bus drivers, and other personnel with medical conditions for there to be a masking mandate. As is evidenced by the students’ decisions in the last two weeks alone, the majority of the student population has not, and will not, wear masks on their own accord without a mask mandate in place."
Says Paquette, who teaches at Farragut Intermediate: "Knox County Schools has no mask mandate in place. Without a mask mandate in place, I am subjected to most of the students (far more than a majority, in fact, close to 90%) electing not to wear masks. For example, out of the approximately 75 students I teach daily given our class rotations, only a handful (5-6) of those students actually wear a face mask at school."
Related litigation is underway in U.S. District Court in Memphis.
PREVIOUS STORY: The parents of three Knox County Schools students with special needs are suing Gov. Bill Lee and Knox County, alleging their failures to adopt or enforce COVID-19 safety measures like mask policies are prohibiting their children from getting a legal education.
The lawsuit was filed Tuesday in U.S. District Court in Knoxville.
The parents are identified by their initials, as are the children.
The lawsuit follows the launch of a civil rights investigation by the Biden administration's Department of Education into whether states that have banned mask mandates are discriminating against students who could be at higher risk for severe illness from the virus, especially with the highly contagious delta variant now in play.
The Education Department's Office for Civil Rights is looking into the conduct of Tennessee as well as South Carolina, Iowa, Oklahoma and Utah.
The plaintiffs are the parents of two boys and a girl, the lawsuit shows.
One boy is age 8 and a second-grader at Cedar Bluff Elementary, according to the lawsuit. The other boy is age 10 and a fourth-grader. His school isn't named.
The girl is a sixth-grader at West Valley Middle School, the lawsuit states.
All three children have physical disabilities that make them more susceptible to ailments and the threat of COVID-19, the lawsuit states. Two currently are too young to get a virus vaccine.
The parents allege the county's lack of a mask mandate and Lee's stance allowing parents to opt out of a mandate deprive their children from being able to enjoy a full educational experience. At least two of the three children are being educated from home, according to the lawsuit.
Virus infections have risen sharply since school started this summer but Knox County Schools leaders won't impose a mask requirement as they did last year, the lawsuit states. The school board this week narrowly declined to put down a mask requirement for students.
Further, Lee has put down an order, No. 84, that gives parents the option of opting out of any mask requirement "for a student in kindergarten through twelfth-grade to wear a face covering at school, on a school bus, or at school functions, by affirmatively notifying in writing the local education agency or personnel at the student's school."
Lee recently urged the wearing of masks but isn't requiring it in schools.
"Despite the soaring numbers, Knox County has not adopted a masking mandate for its children in public schools. And even if they did, the Governor's order says parents can simply "opt out" and risk injury or death to other vulnerable children," the lawsuit states.
Right now "countless" students are going to school without a mask when simply wearing one would reduce the threat of the virus, the parents alleged.
The plaintiffs say their children are being denied fundamental access to physical attendance at school because of the failure of Lee and county school leaders to act.
They're asking for a federal court order requiring Knox County Schools to enforce a mask mandate. They also seek a federal court order blocking Lee's executive order from being enforced.
This week in announcing its civil rights investigation, the federal Education Department issued this statement from Secretary Miguel Cardona: “The Department has heard from parents from across the country — particularly parents of students with disabilities and with underlying medical conditions — about how state bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally. It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve."
