Republican lawmaker questions effectiveness of governor’s mask opt-out order

By: - September 2, 2021 5:02 am
Tennessee Gov. Bill Lee pictured with his wife, Maria, during a Memphis event in December. (Photo by © Karen Pulfer Focht)

Tennessee Gov. Bill Lee pictured with his wife, Maria, during a Memphis event in December. (Photo by © Karen Pulfer Focht)

As Shelby County tries to overturn Gov. Bill Lee’s order allowing parents to opt children out of a school mask mandate, state Rep. Tom Leatherwood contends the governor’s directive is limited already because of health department rules.

Leatherwood, an Arlington Republican, said Wednesday he supports parents’ rights to send their children to school without masks. Yet Leatherwood acknowledged he and other parents opted to have their children wear masks at school to participate in classroom learning and avoid quarantining.

“Even if a parent opts out of the mask, the health department can still be very stringent on the contact tracing, and this is where we see more students being quarantined,” Leatherwood said.

Rep. Tom Leatherwood, R-Arlington (Photo: Tennessee General Assembly)
Rep. Tom Leatherwood, R-Arlington (Photo: Tennessee General Assembly)

In addition to those being quarantined after testing positive for COVID-19 or the Delta variant, thousands of students in school districts across the state are being held out of school for quarantine periods because they came in contact with others infected by the virus. If students follow guidelines set out by the U.S. Centers for Disease Control and Shelby County Health Department, including wearing masks and social distancing, they can avoid being quarantined, according to Leatherwood.

Some parents who opted their children out of the mask requirement have been contacted by coaches who recommended their children wear masks in order to avoid being quarantined, Leatherwood added. Otherwise, they wouldn’t be able to play in games while sitting at home, he said.

Shelby County Health Department ordered universal masks for students, teachers and staff in all school districts, including private schools and municipal districts outside Memphis, even before Gov. Lee set forth an executive order enabling parents to opt children out of those mask requirements. 

Shelby County government filed suit Aug. 26 in U.S. District Court seeking to overturn Lee’s order, saying it is hurting their ability to educate children, who now make up 36% of the state’s 809,084 confirmed cases of COVID-19. 

Shelby County Mayor Lee Mayor points out the Shelby County Health Department has the “most aggressive response” to the pandemic in the state or region and the county government wants to do more.

“And we know right now that one of the areas of transmission is among children and possibly in schools, and all the best science suggests that masks will help to mitigate that transmission frequency,” Harris said Wednesday.

State Rep. London Lamar, a Memphis Democrat and proponent of mask-wearing, said she supports Shelby County’s legal effort.

“I think Shelby County has a right to do what’s best to protect their children in its entirety, and in the midst of a mass pandemic, we know that masks help slow down the transmission of COVID-19,” Lamar said Wednesday.

The Governor’s Office declined to comment on the pending litigation.

Since the pandemic started, Shelby County has suffered 119,942 COVID-19 cases, with 1,834 deaths, according to the filing.

I think Shelby County has a right to do what's best to protect their children in its entirety, and in the midst of a mass pandemic, we know that masks help slow down the transmission of COVID-19.

– Rep. London Lamar, D-Memphis

But while Gov. Lee has encouraged people to wear masks and get vaccines, he has not put any mandates in place, instead saying adults should consult with physicians about vaccines and also to make the final decision on whether children should wear masks at school.

Yet the lawsuit notes more than 70% of pediatric intensive care unit beds are full and as of the filing, children under 18 make up 32% of the total active cases in Shelby County. Children 12 and under are not eligible for the vaccine, making masks even more important for students to wear to school, the lawsuit claims.

Shelby County Health Department’s Aug. 6 order, which followed the governor’s extension of a state of emergency, requires masks to be worn in K-12 and Pre-K schools and daycare facilities in Shelby County for those 2 years and older, unless a valid CDC exception applies.

The lawsuit contends the governor’s subsequent executive order, which he made in part to avert a special session of the Legislature, subverts the Shelby County Health Department’s effort to enforce mask wearing and putting other children at a heightened risk of exposure to COVID-19.

Shelby County Republican Tom Leatherwood contends the governor’s mask opt-out directive is limited already because of health department rules, but added he is interested to hear the court’s decision as a test for the governor’s executive orders.

Lee announced the order about a week after House Speaker Cameron Sexton threatened to seek a special session to pass legislation punishing school districts for mandating masks, closing schools or segregating unvaccinated students.

The filing seeks injunctive relief and a declaratory judgment, claiming the governor’s order violates due process laid out in the U.S. Constitution. It also contends the order makes “maintenance and support of a system of free public schools impossible.”

“COVID-19’s Delta variant is running rampant through schools, resulting in isolated quarantining of students that will continue and get worse until either the majority of students can be and are vaccinated, or until masking is required uniformly throughout school systems,” the filing states. “Enough damage has been done already that it will likely take many months of fighting against the current waves of COVID-19 that have affected children in Shelby County and all of Tennessee before schools can recover, which would cause imminent harm to Plaintiff and its ability provide for the health, safety and public education in Shelby County, Tennessee.”

The filing claims the governor’s order violates the education clause of the state Constitution by interfering with Shelby County’s effort to provide public education and makes it impossible to comply with federal education regulations to receive funding under the American Rescue Plan.

Leatherwood said he is interested to hear the court’s decision as a test for the governor’s executive orders. 

But he also believes the Legislature needs to revisit legislation that would remove the authority of the state’s six independent health departments, including Shelby, and turn them into advisory boards. Leatherwood contends school boards and district directors should make decisions for school systems and mayors ought to make determinations for cities, counties, local businesses and government properties.

Legislation the General Assembly passed in early 2021 to shift authority to county mayors did not go far enough, Leatherwood said.

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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.