Two related pediatric health organizations have joined two Shelby County families in their lawsuit against Tennessee Gov. Bill Lee regarding his order allowing families to opt children out of school mask mandates.
The American Academy of Pediatrics (AAP) and the Tennessee chapter of the AAP joined the families, who were granted a temporary restraining order Sept. 3. The temporary restraining order stops Lee’s order in Shelby County, meaning families cannot opt out of the mandate, through Friday.
“Over the past 18 months, (the organizations) have worked ceaselessly to evaluate the dangers of and potential public health measures for reducing the deadly spread of COVID-19,” the groups’ brief said. “COVID-19 poses grave risks to children, even more so to children with special health needs. At the same time, the AAP strongly recommends that all reasonable precautions be taken –including imposing universal masking policies – so that children can safely attend in-person school.”
The Tennessee chapter of AAP includes 1,000 members, including pediatricians, residents and medical students from Tennessee’s hospitals, community clinics and school-based health centers. The national organization includes 67,000 primary care pediatricians, pediatric medical subspecialists and pediatric surgical specialists.
“Masking is a necessary part of the mitigation strategy to protect children who are too young for vaccination,” TNAAP President Dr. Anna Morad said. “Masking works to decrease transmission and protect our children. All children need to be able to attend school in person, and we need to create a safe environment for them.”
The amicus brief was filed by Democracy Forward, a nonprofit that litigates and advocates against corruption.
“Science matters. Children matter. And the law matters. We’re proud to represent medical professionals in Tennessee and across the nation to ensure the courts have access to the science and the expertise of the nation’s medical community – that universal mask policies are the most effective way to stem the spread of COVID-19 in schools,” Democracy Forward President and CEO Skye Perryman said. “The law protects children and their right to a safe learning environment. We urge the courts to follow the law and the science and protect children.”
The lawsuit, filed Aug. 27, claims Lee’s executive order allowing parents to opt school children out of mask mandates violates the Americans with Disabilities Act because it does not allow the plaintiffs “to access reasonable protection from the threat of exposure to COVID-19.”
The lawsuit was filed on behalf of two students, identified by their initials. The named parties, Brittany and Ryan Schwaigert, along with Emily Tremel, are identified as parents and next friends.
One plaintiff is identified as a 13-year-old boy attending West Middle School, a public school in Shelby County, who “despite being vaccinated, he is therefore at a heightened risk of severe injury or death if he contracts COVID-19, and cannot wear a mask due to his disability.”
The other plaintiff is identified as an 11-year-old girl attending Houston Middle School, another public school in Shelby County, who “suffers from a chromosomal abnormality that causes episodic ataxia, which can be triggered by increased body temperature, such as what occurs when someone has a fever.”
Tennessee, along with four other states, is the subject of an investigation by the U.S. Department of Education’s Office of Civil Rights on whether it follows ADA protocols.
The lawsuit is asking for a preliminary injunction against the executive order that would be good until the federal lawsuit, being heard by U.S. District Judge Sheryl Lipman, is completed.
While the temporary restraining order applies to only Shelby County, the plaintiffs are asking for an injunction that would apply across the state.
“As the AAP’s comprehensive review has found, the medical literature and the experiences of the front-line pediatric practitioners who make up the TNAAP and AAP’s membership prove beyond any doubt that universal mask policies in schools significantly reduce the spread of COVID-19 and protect all children, particularly the medically vulnerable,” the brief read.