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Shelby County Takes on Governor's Masking Policy in Lawsuit

Shelby County Schools is still enforcing universal masking.
Katie Riordan
Shelby County Schools is still enforcing universal masking.

Tennessee is the latest state where a fight over masks in the classroom may be settled in court. Shelby County's government is asking for a statewide order, which allows parents to choose whether to follow a local mask mandate in schools, to be overturned.

The county's legal challenge, filed Thursday, comes as COVID-19 cases among school-aged children surge both locally and in Tennessee.

Local, state and federal health officialshave recommended universal masking in schools, as a way to maintain in-person learning even as the highly contagious Delta variant drives up infections.

Earlier this month, the Shelby County Health Department required students wear masks in all K-12 facilities.

But Gov. Lee’s August 16 executive order says schools must let parents opt out.

Shelby County’s lawsuit argues the governor’s actions unlawfully undermine the county’s duty to provide a healthy and safe school environment.

It points out that Gov. Bill Lee has himself said the “best way” to protect children from COVID-19 is to have them wear masks.

More than 1,000 parents in Shelby County’smunicipal school districts have already signed waivers to exempt their children from the mandate, although schools in Memphis and Nashville are still enforcing universal masking policies.

Steve Mulroy, a law professor at the University of Memphis, says it’s hard to predict if a court will find that the governor’s order violates either state law or the U.S. Constitution as Shelby County alleges. But he says local jurisdictions fighting for the authority to require masks do have a compelling case.

“The Shelby County government and the school system—like other school systems around the country that are challenging similar orders—are desperate to protect the children,” he says. “They have a sincere belief that universal masking is necessary to protect children, particularly those who are immunocompromised and are under 12 and cannot get a vaccine right now.”  

Mulroy predicts similar lawsuits will follow. The Shelby County Schools District did not reply to a question asking if it plans to prepare its own lawsuit or if the district would join the county government’s filing. It’s also unclear how district leaders will proceed if a judge upholds Lee’s order.

News broke late on Friday that a group of parents also filed a separate suit against Lee.

A protracted legal battle could work in the pro-masking camp’s favor, Mulroy said.

“It might end up being a waiting game,” he says. “If Shelby County Schools can delay implementation of the governor’s order long enough, facts on the ground COVID-wise might develop to the point where it won’t be a problem.”

But, in the meantime, COVID cases among children are climbing. Minors now account for about a third of the state’s confirmed cases.

Governor Lee’s office would not comment on pending litigation.

Katie is a part-time WKNO contributor. She's always eager to hear your story ideas. You can email her at kriordan@wkno.org