Tennessee’s new COVID-19 law is back in court. Here’s how the arguments unfolded. – The Tennessean

Tennessee continues to insinuate masks don't work and the task of keeping kids safe from COVID-19 in schools is an individual, not community, task, according to legal arguments in federal court on Friday.

U.S. District Judge Waverly D. Crenshaw is deciding whether he will issuea preliminary injunction to block enforcement of a new state law's provision prohibitingschools from implementing mask mandates except in extremely rare circumstances.

It comes on the heels of three other cases across the state one in Crenshaw's court, too over the state's approach to masking in schools.

On Friday, the sides faced off on familiar lines.

The state argued that with the advent of vaccines, the increased availability of at-home tests and some promising treatment options, parents have the option to find a way to send their kids to school or not without impacting the others.

Parents of eightchildren with disabilities, the plaintiffs in the lawsuit, argue school isn't equivalent to deciding whether to stay home from a birthday party.

School is important, they argued Friday, important enough to accept some risk of contracting the virus, even for their more-vulnerable children.

But that risk can be mitigated to avoid widespread outbreaks among all children, and especially those with higherrisk of contracting the virus and severe outcomes from the infection, those attorneys argued.

Thesearguments run along the same lines as the three previouscases. Indeed, they share a handful of plaintiffs and attorneys.

Gov. Bill Lee lastweek signeda comprehensive legislative packageaimed to curtailing the power local agencies have over COVID-19 restrictions. On Friday, he announced he would not extend a state of emergency in Tennessee because of the virus.

Signing the new law cameon the heels of Lee's executive order allowing parents statewide to opt their children out of any such mandate at their schools.

Lee rescinded the orderin light of the new state law, but it had already been blocked in three counties by three separate federal judges, including Crenshaw.

Eight Tennessee children, via their parents, sued Lee and Tennessee Education Commissioner Penny Schwinn under the new law on Friday, just after the governor signed it. They argue the restrictions violate their children's rights under the Americans with Disabilities Act.

Unexpectedly, the lawsuit was assigned quickly, landing on Crenshaw's desk almost immediately.

Crenshaw also acted with remarkable speed, blocking the implementation of the law until he could weigh the legal arguments.

Governor signs bill: Tennessee Gov. Bill Lee signs sweeping COVID-19 legislation into law

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The judge extended deadlines for attorneys through Dec. 2to file court documents.

Plaintiffs are expected to add a new filing this week after the Associated Press reported Friday an aide in the governor's office informed lawmakers of concerns the law was illegal under the ADA before it was passed.

Althoughthe state continues to push against claims of the widely accepted efficacy of masks, they stepped back from testimony in the previous case from a witness Crenshaw said was "troubling and problematic for several reasons."

The state also basedits arguments Friday on COVID-19 data, with expected exhibits to include reports from the Tennessee Department of Health, the Centers for Disease Control and Prevention, the U.S. Department of Education and the Food and Drug Administration.

At one point Friday, the state asked a witness whether it was true COVID-19 infection numbers had been going down.

They have not.

Case counts had been dropping over the past few months, plateauing in most places still higher than the average rates of cases before this summer's delta variant surge, Tennessee Department of Health data showed. But in recent weeks, cases have been ticking up again, data shows.

The state's attorneys also plan to reference statements from two of the other lawsuits against Lee's previous mask order, from both the Middle and Eastern Districts.

On the other side, the parents' attorneys added to their witness list from the previous lawsuits with two pediatricians, an infectious disease and internal medicine specialist at Le Bonheur Children's Hospital, a pediatric specialist fromSt. Jude Children's Research Hospital, both in Memphis,and the mother of a plaintiff, who is herself a board-certified immunologist based in Middle Tennessee.

They've submitted declarations from their previous witnesses, as well, leaning on evidence that has already been successful in convincing Crenshaw that children are at risk if schools cannot put in place mask requirements.

Facing lawsuit: New Tennessee COVID-19 law banning school mask mandates is unconstitutional, lawsuit says

This time, the families are arguing against a law passed by the full legislature, not an emergency order from the governor alone.

With the new bill, "the state legislature passed what is, charitably, a vindictive law to elevate the 'rights' of persons to avoid Covid measures (quarantines and cloth universal masking) while removing the actual federal rights of children with disabilities who require such measures as reasonable accommodations to safely access the public school," they argue in a pretrial brief.

The state dances away from the claim they're barring ADA-compliance. That's a decision of the individual principal, they say in filings.

They also argue that keeping children with disabilities home as a way to avoid possible infection isn't "segregation," as the attorneys for the children argue.

"The Act does not require or even suggest segregation of a student requesting

an accommodation. Rather, the Act allows schools to implement a mask mandate so that the accommodated student be provided in-person education, which does not differ from the accommodation Plaintiffs have sought...Nothing in the Actspeaks to who

will be within 6 feet of the accommodated person, other than that such persons shall be required to mask," they wrote.

The state's attorneys also argue the new possibility of vaccinations for young children mitigates the risk of spreading the virus, calling them "extremely effective" on Friday, even though the new law also bans vaccine mandates in almost every case.

Arguments also dipped into debate over the idea of schools having the power to quarantine sick children, which the law may block them from doing. The new law gives the state health commissioner the authority to set quarantine policies.

School medical staff always had the ability to send sick kids home from school, the parents argued.

Reach reporter Mariah Timms at mtimms@tennessean.com or 615-259-8344 and on Twitter @MariahTimms.

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Tennessee's new COVID-19 law is back in court. Here's how the arguments unfolded. - The Tennessean