Feds open civil rights probe of Lee mask order

By: - August 30, 2021 9:49 pm
Gov. Bill Lee addresses members of the 112th General Assembly at the opening of a special session dedicated to education. (Photo: John Partipilo)

Gov. Bill Lee addresses members of the 112th General Assembly at the opening of a special session dedicated to education. (Photo: John Partipilo)

The federal government opened a civil rights probe Monday of Gov. Bill Lee’s executive order on masks, threatening to take action against Tennessee if it finds a violation of U.S. law.

The U.S. Department of Education’s Office for Civil Rights informed Education Commissioner Penny Schwinn it opened a “directed investigation” into whether the state is preventing school districts from “considering or meeting the needs of students with disabilities” because of its policy allowing parents to opt out of mask mandates designed to stem COVID-19. According to reports, Tennessee is one of five states whose governor’s orders are under investigation.

“OCR’s investigation will focus on whether, in light of this policy, students with disabilities who are at heightened risk for severe illness from COVID-19 are prevented from safely returning to in-person education, in violation of federal law,” the letter states.

The letter points out the nation has experienced “significant increases” in COVID-19 cases at the start of the school year, mainly among school-age children.

The Governor’s Office said Monday it received the letter and is reviewing it.

DOE tennessee

Lee recently averted a special session of the General Assembly by issuing an executive order allowing parents to opt out of mask requirements made by local school boards.

Numerous school districts bucked the order, including Shelby County Schools, Metro Nashville Public Schools and Hamilton County Schools, and rural districts such as Henry County and Hancock County school districts. Williamson County School Board adopted a mask mandate but gave parents the option to send their children to school without wearing masks.

“Gov. Bill Lee’s administration should immediately suspend its order negating local mask rules in schools until this federal investigation concludes,” said Sen. Raumesh Akbari, chairman of the Senate Democratic Caucus. “All our students, including those who have underlying health conditions, deserve access to safe learning conditions.”

The federal investigation comes just days after Memphis-based law firm Donati Law filed a class-action lawsuit alleging the governor’s executive order violates the Americans with Disabilities Act. The lawsuit is filed on behalf of two Shelby County families who have children vulnerable to COVID-19 because of underlying health conditions.

House Speaker Cameron Sexton and Lt. Gov. Randy McNally supported Lee’s order, and the lieutenant governor expressed dismay that school systems refused to obey it, saying such a move could force the Legislature into a special session.

Sen. Raumesh Akbari, D-Memphis, photographed at the Tennessee Capitol by John Partipilo on March 18, 2021.
Sen. Raumesh Akbari, D-Memphis: Lee Administration should immediately suspend Executive Order 84. (Photo: John Partipilo)

McNally spokesman Adam Kleinheider pointed out the governor’s order was a compromise designed to allow school boards to “ensure” students’ health and safety while recognizing the rights of parents.

“Nothing in the order prohibits a mandate. It merely affirms the right of parents to opt out. Exceptions to vaccine or mask mandates for religious and medical reasons are quite common and consistent with the executive order. Lt. Gov. McNally continues to assert this is an appropriate and lawful policy and does not violate anyone’s civil rights,” Kleinheider said in a statement.

Sexton had issued threats against school systems across the state, saying he would ask the governor to call a special session in case any system closed buildings, required masks or segregated unvaccinated students.

Responding to questions about the investigation, Sexton spokesman Doug Kufner said the speaker has been “consistent” in saying parents should control healthcare decisions for their children.

“If school boards want to impose mask mandates, parents should have various options for their children and, at a minimum, the ability to opt out, as well as the ability to use their education dollars to attend a school of their choice,” Kufner said.

Previously, Sexton said he would consider pushing legislation enabling parents to use vouchers to send their children to private schools if districts close buildings. In this case, Kufner said Sexton could support a move to allow vouchers for parents whose school districts require masks.

With school districts closing buildings and quarantining hundreds of students as COVID-19 and the Delta variant hits the state, affecting thousands of children, Commissioner Schwinn issued a letter Aug. 27 to school system directors setting up a process for districts to offer virtual learning.

The Legislature put a hold on virtual learning earlier this year in an effort to force school districts to return students to classrooms.

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Sam Stockard
Sam Stockard

Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state's best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial from the Tennessee Press Association.