Differing court rulings affect mask mandates in East and West Tennessee
A federal judge in Memphis late last week granted a temporary restraining order against the state enforcing Gov. Bill Lee’s executive order allow parents to opt their children out of mask requirements in school.
But the Knoxville Compass reports another federal judge in East Tennessee declined to take the same step in a case filed by parents there. U.S. District Judge Ronnie Greer found the families of three students with disabilities hadn’t presented sufficient evidence of “immediate or irreparable injury or loss” by Knox County School’s refusal to enact a mask mandate.
In the Memphis case, mothers of two children with serious illnesses persuaded U.S. District Judge Sheryl Lipman to issue a restraining order against the opt-out provision after the Shelby County Health Department issued a universal mask requirement.
U.S. education secretary questions legality of Lee’s mask opt-out order
Tennessee Gov. Bill Lee’s executive order allowing parents to opt out of universal masking rules at Tennessee public schools may infringe on federal laws requiring districts to adopt policies “to protect students and educators as they develop their safe return to in-person instruction plans,” according to a letter from U.S. Education Secretary Miguel Cardona.
The letter comes as public schools in Nashville and Shelby County have refused to adopt Lee’s opt-out order as they look into whether he has the legal authority to require the change.
Read the full letter dated Aug. 18 below:
Dear Governor Lee and Commissioner Schwinn:
As the new school year begins in school districts across Tennessee, it is our shared priority that students return to in-person instruction safely. The safe return to in-person instruction requires that school districts be able to protect the health and safety of students and educators, and that families have confidence that their schools are doing everything possible to keep students healthy. Tennessee’s actions to block school districts from voluntarily adopting science-based strategies for preventing the spread of COVID-19 that are aligned with the guidance from the Centers for Disease Control and Prevention (CDC) puts these goals at risk and may infringe upon a school district’s authority to adopt policies to protect students and educators as they develop their safe return to in-person instruction plans required by Federal law.
We are aware that Tennessee has adopted an Executive Order prohibiting local educational agencies (LEAs) from adopting requirements for the universal wearing of masks. This State level action against science-based strategies for preventing the spread of COVID-19 appears to restrict the development of local health and safety policies and is at odds with the school district planning process embodied in the U.S. Department of Education’s (Department’s) interim final requirements. As you know, the American Rescue Plan Act of 2021 (ARP Act) requires each LEA that receives Elementary and Secondary School Emergency Relief (ARP ESSER) funds to adopt a plan for the safe return to in-person instruction and continuity of services. (See section 2001(i).) The Department’s interim final requirements clarify that such plan “must describe…how [the LEA] will maintain the health and safety of students, educators, and other staff and the extent to which it has adopted policies, and a description of any such policies, on each of the following safety recommendations established by the CDC…” The safety recommendations include “universal and correct wearing of masks.”
The Department is concerned that Tennessee’s actions could limit each LEA’s ability under the ARP Act to adopt a plan for the safe return to in-person instruction and continuity of services that the LEA determines adequately protects students and educators by following CDC guidance. The Department stands with the dedicated educators who are working to safely reopen schools and maintain safe in-person instruction.
The Department also emphasizes that it is within an LEA’s discretion to use ARP ESSER funds for implementing indoor masking policies or other policies aligned with CDC guidance. Section 2001(e)(2)(Q) of the ARP Act explicitly gives LEAs the authority to use ARP ESSER funds (as well as ESSER funds granted through prior relief funding) for “developing strategies and implementing public health protocols including, to the greatest extent practicable, policies in line with guidance from the Centers for Disease Control and Prevention for the reopening and operation of school facilities to effectively maintain the health and safety of students, educators, and other staff.”
We are eager to partner with Tennessee on any efforts to further our shared goals of protecting the health and safety of students and educators. In addition, the Department will continue to closely review and monitor whether Tennessee is meeting all of its Federal fiscal requirements. It’s critical that we do everything in our power to provide a safe environment for our students and staff to thrive.
Sincerely,
Miguel A. Cardona, Ed.D.
McNally to holdout school districts: So you *want* a special session?
Senate Speaker Randy McNally (R-Nashville) was one of the leading opponents of House Republican calls to hold a special session to ban schools from imposing mask mandates. Under a compromise, Gov. Bill Lee on Monday issued an executive order allowing parents to opt their children out of mask requirements. But Shelby County and Nashville school districts have slow-walked the order so far, saying they want to look into the legal specifics. Nashville District Attorney Glenn Funk also announced he wouldn’t bring charges against teachers or district officials who violate the order.
McNally doesn’t appear pleased that the order isn’t being immediately complied with. Here’s his statement released on Tuesday afternoon:
“I am extremely appalled and alarmed at the response to Governor Lee’s executive order from Metro Nashville Public Schools and Shelby County Schools. This order was a compromise that still allows school boards to ensure the health and safety of their students while recognizing the rights of parents to decide what is best for their children. The Governor and the General Assembly cannot and will not allow lawful orders to be defied. If these systems persist in resisting the order, we will have no choice but to exercise other remedial options.”
In other words, if the opt-out provision isn’t implemented, McNally likely won’t stand in the way of renewed calls for a special session in which all bets could be off.
Quarantine camps? Governor’s top lobbyist dispels myths about executive order
Gov. Bill Lee’s top legialtive lobbyist, Brent Easley, has written a letter to lawmakers seeking to dispel what he called conspiracy theories about an executive order authorizing the Tennessee National Guard to continue to help giving COVID-19 vaccines and tests.
Read the whole thing in all its glory below:
Importance: High
Members,
Over the past few days, a number of you have reached out seeking information for your constituents as they have contacted you regarding several conspiracy theories that are unfortunately being shared as fact. These rumors distort Executive Order 83 that was signed on Friday, and we wanted to provide you with some additional information as you craft responses.
Five of the most frequently shared items that have been relayed to our offices are…
— The EO creates “quarantine camps” – FALSE.
— Tennesseans serving in the National Guard will be used to round up citizens that are unvaccinated and take them to locations to be quarantined or vaccinated – FALSE.
— Tennesseans serving in the National Guard will be coming to forcibly vaccinate citizens in their homes – FALSE – This is specifically prohibited by state law as well.
— This executive order is laying the groundwork for permanent lockdowns – FALSE.
— That Covid-19 vaccines are being given to livestock so it will enter the -food supply to vaccinate citizens through their meat consumption – FALSE.
All of these examples, and related rumors, are demonstrably false. Additionally, Tennesseans who serve in our National Guard have faithfully served their communities in many capacities this year and we are grateful that they remain committed to serving their neighbors.
Below are some of the key components of that Executive Order that are most frequently being misinterpreted. All of these items were included in previous EOs as well.
Section 8 allows members of the Tennessee National Guard to continue supporting our state’s response to Covid-19 in ways like administering tests, helping with voluntary vaccine distribution or driving ambulances if there is a shortage of qualified drivers. It is critical that we allow the flexibility for our National Guard members to lean in whenever a need is identified.
Section 14 allows for telehealth assessments with regard to existing mental health commitment procedures. There is no expansion or substantive change to existing mental health law processes and protections.
Section 18 is related to healthcare facility policies, and provides flexibility for hospitals to set up alternate care sites on their grounds such as tents in parking lots or use of a conference room to treat patients. This flexibility was included so that medical facilities can have this tool in their toolbox if extra space is needed.
We are responding to constituents who reach out with concerns and hope you will join us in sharing the facts. If you have additional questions on these items, please do not hesitate to reach out to me or anyone on my team.
Best,
Brent Easley
Lee extends executive orders through September
Gov. Bill Lee has extended several executive orders through the end of September, including special provisions to allow governing bodies to meet electronically and for bars to sell alcohol to go.
Here’s the full release from the governor’s office:
NASHVILLE, Tenn. – Tennessee Governor Bill Lee today signed Executive Order No. 59 to extend certain, targeted provisions of Executive Order Nos. 36, 38, 49, 50, 54, and 55 through September 30, 2020 to facilitate the continued treatment and containment of COVID-19 through regulatory flexibility, promoting social distancing and wearing face coverings in public places, and protecting vulnerable populations.
Gov. Lee also signed Executive Order Nos. 60 and 61, which extend through September 30 provisions that allow for electronic government meetings subject to transparency safeguards and remote notarization and witnessing of documents, allowing for implementation of best practices developed during COVID-19 for providing live broadcasts of electronic meetings and safely conducting in-person transactions, respectively, beginning October 1.
Executive Order No. 59 extends previous provisions that:
- Urge persons to wear a cloth face covering in places where in close proximity to others, while facilitating local decision-making concerning face covering requirements;
- Urge social distancing and limit social and recreational gatherings of 50 or more persons, unless adequate social distancing can be maintained;
- Limit nursing home and long-term-care facility visitation, while providing a framework for safe, limited visitation, and continue the closure of senior centers;
- Provide that employers and businesses are expected to comply with the Governor’s Economic Recovery Group Guidelines (e.g., Tennessee Pledge) for operating safely (the 6 counties with locally run county health departments have authority to issue different directives on businesses/venues);
- Provide that bars may only serve customers seated at appropriately spaced tables and must follow the Economic Recovery Group Guidelines (e.g., Tennessee Pledge) for restaurants (the 6 counties with locally run county health departments have authority to issue different directives on businesses/venues);
- Continue access take-out alcohol sales to encourage carryout and delivery orders;
- Allow broad access to telehealth services;
- Increase opportunities for people to easily join the healthcare workforce;
- Facilitate increased testing and health care capacity;
- Extend deadlines and suspend certain in-person continuing education, gathering, or inspection requirements to avoid unnecessary person-to-person contact; and
- Increase opportunities to work remotely where appropriate.
Executive Order No. 60, as previously extended by Executive Order No. 51, is extended through September 30 and allows governing bodies to meet electronically regarding essential business as long as they provide electronic access to the public and meet the safeguards established in that order to ensure openness and transparency. The order ensures that governmental entities are able to carry out essential business in a safe, transparent way without creating large gatherings in a confined space and endangering persons, particularly those at increased risk of suffering severe illness from COVID-19, while requiring that governing bodies transition toward adopting best practices developed during the pandemic, like providing real-time, live public access to electronic meetings, beginning October 1.
Executive Order No. 61, as previously extended by Executive Order No. 52, is extended through September 30, and allows for remote notarization and remote witnessing of documents, subject to compliance with certain procedures. The order ensures that persons, and particularly populations especially vulnerable to COVID-19, including older adults and persons with compromised immune systems or serious chronic medical conditions, can continue to engage in commerce and execute legal documents without requiring in-person contact while also making preparations to implement best practices for a safe return to in-person transactions beginning October 1.
Governor’s ban on nonessential businesses met with confusion
The doors of the state Capitol were closed to the public on March 16, 2020. (Erik Schelzig, Tennessee Journal)
Gov. Bill Lee’s executive order to shut down nonessential businesses around the state to help prevent the spread of the coronavirus carried a 2,250-word attachment outlining which commercial activities would be exempted from coverage.
That has led to a chorus of questions about which commercial activities exactly are covered by the ban, and whether looser state guidelines would supercede stricter local rules. The second question is the easier one to answer. According to Lee’s executive order: “Nothing herein repeals, preempts, or otherwise limits the authority, if any, of a locality to issue further orders or measures on these same subjects.”
As for the which companies are covered by the blanket ban, Lee’s previous orders have specifically targeted restaurants (except for takeout and delivery) and gyms. The governor also issued a separate executive order Monday listing more businesses as having to close (in addition to the ones earlier ordered).
Businesses to be shuttered include those performing close-contact personal services, such as:
- Barber shops.
- Hair salons.
- Waxing salons.
- Threading salons.
- Nail salons or spas.
- Spas providing body treatments.
- Body-art facilities or tattoo services.
- Tanning salons.
- Massage-therapy establishments or massage services.
Also closed are entertainment and recreational gathering venues, such as:
- Night clubs.
- Bowling alleys.
- Arcades.
- Concert venues.
- Theaters, auditoriums, performing arts centers, or similar facilities.
- Racetracks.
- Indoor children’s play areas.
- Adult entertainment venues.
- Amusement parks.
- Roller or ice skating rinks.
So what’s essential? A look at Gov. Bill Lee’s executive order
Gov. Bill Lee speaks at a press conference on Tennessee’s coronavirus response in Nashville on March 16, 2020. (Erik Schelzig, Tennessee Journal)
Here are the details about which businesses are exempted by Gov. Bill Lee’s order for non-essential operations to shut down to help stop the spread of the coronavirus. It’s a long list, ranging from marinas to dry cleaners. It also includes “any other business or organization that operates at all times with ten or fewer persons accessing the premises.”
Here’s the full breakdown:
For purposes of Executive Order No. 22, Essential Services include:
1. Personnel identified on pages 5-15 of the Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response issued by the Cybersecurity and Infrastructure Security Agency (CISA) of the United States Department of Homeland Security
2. Health Care and Public Health Operations. This includes, but is not limited to: hospitals; clinics; medical practices and services; mental health and substance abuse services; dental offices; pharmacies; public health entities, including those that compile, model, analyze, and communicate public health information; pharmaceutical, pharmacy, medical device and equipment, and biotechnology companies (including operations, research and development, manufacture, and supply chain components); organizations collecting blood, platelets, plasma, and other necessary materials; obstetricians and gynecologists; eye care centers, including those that sell glasses and contact lenses; home health care services providers; mental health and substance use providers; other health care facilities and suppliers; providers of any related and/or ancillary health care services; entities that transport and dispose of medical materials and remains; manufacturers, technicians, logistics, and warehouse operators, and distributors of medical equipment, personal protective equipment (PPE), medical gases, pharmaceuticals, blood, platelets, and plasma products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products; veterinary care and all health care services provided to animals. This also includes any medical or administrative personnel necessary to operate those functions in this paragraph. Health Care and Public Health Operations shall be construed broadly to avoid any impacts to the delivery of health care, broadly defined. Health Care and Public Health Operations does not include any procedures that would violate Executive Order No. 18, which remains in effect;
3. Human Services Operations. This includes, but is not limited to: government or government-funded human services to the public through state-operated, institutional, or community-based settings; long-term care facilities; day care centers, day care homes, or group day care homes; residential settings and shelters for adults, seniors, children, or people with developmental disabilities, intellectual disabilities, substance use disorders, or mental illness; transitional facilities; home-based settings to provide services to individuals with physical, intellectual, or developmental disabilities, seniors, adults, or children; field offices that provide and help to determine eligibility for basic needs including food, cash assistance, medical coverage, child care, vocational services, rehabilitation services; developmental centers; adoption agencies; businesses that provide food, shelter, social services, and other necessities of life for economically disadvantaged individuals, individuals with physical, intellectual, and/or developmental disabilities, or individuals otherwise in need. Human Services 7 Operations shall be construed broadly to avoid any impacts to the delivery of human services, broadly defined;
4. Essential Infrastructure Operations. This includes, but is not limited to: food production, distribution, and sale; construction-related services, including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, school construction, construction related to Essential Activity or Essential Services, and housing construction; building management and maintenance; landscape management; airport operations; operation and maintenance of utilities, including water, sewer, and gas; electrical services, including power generation, distribution, and production of raw materials; distribution centers; oil and biofuel refining; services related to roads, highways, railroads, ports, and public transportation; cybersecurity operations; flood control; solid waste and recycling collection, removal, and processing; and internet, video, and telecommunications systems and services, including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services. Essential Infrastructure Operations shall be construed broadly to avoid any impacts to essential infrastructure, broadly defined;
5. Essential Government Functions. This includes, but is not limited to: first responders, emergency management personnel, emergency dispatchers, and those supporting 911 and emergency services; legislators and legislative branch officials and employees, as determined by the Legislative Branch; judges, judicial branch employees, court personnel, jurors, and grand jurors, as determined by the Judicial Branch; law enforcement personnel; corrections and community supervision personnel; hazardous materials responders; election officials and operations; child protection and child welfare personnel; housing and shelter personnel; park personnel that provide admission, maintenance, and operation of park facilities that provide outdoor recreation; military; and other governmental employees working for or to support Essential Activity or Essential Services. Essential Government Functions also means all services provided by the State, the political subdivisions of the State, and boards, commissions, or agencies of government needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety, and welfare of the public. Essential Government Functions also includes contractors performing or supporting such functions. Each branch of government and government entity shall determine its Essential Government Functions and ensure a plan is in place for the performance of these functions. This paragraph does not apply to the United States government; provided, however, that any employee, official, or contractor of the United States government shall not be restricted from performing their functions under law;
Lee orders nonessential businesses to close statewide
Gov. Bill Lee speaks at the state Capitol on Sept. 16, 2019. (Erik Schelzig, Tennessee Journal)
Gov. Bill Lee has ordered nonessential businesses to close their doors around the state in response to the coronavirus pandemic in Tennessee.
Lee had resisted calling for business closures around the state even while urban areas like Memphis, Nashville, Knoxville, Chattanooga, and others had already taken those steps.
The move comes after 100 people at a Gallatin nursing home were hospitalized and two died amid a COVID-19 outbreak there. Sumner County’s confirmed coronavirus cases jumped to 179.
Here's Executive Order 22: https://t.co/drAKw9YYqT
— Sergio Martínez-Beltrán (@SergioMarBel) March 30, 2020
The governor’s previous executive orders required restaurants to limit themselves to takeout and delivery, shut down gyms, and banned gatherings of more than 10 people.
Lee was joined by House Speaker Cameron Sexton (R-Crossville) and Senate Speaker Randy McNally (R-Oak Ridge) at the announcement. Here’s a statement from McNally:
From the beginning of the COVID-19 crisis, Governor Lee has been deliberate and careful in his approach. This threat changes from day-to-day, hour-to-hour and minute-to-minute. I appreciate Governor Lee’s ability to remain data-focused and flexible. Today’s order is a big step but a needed one at this time. Most population centers in our state are already operating under these conditions. Essential businesses like grocery stores and pharmacies will remain open. The most important part of this order is that it sends the message the governor has been sending for many days now in no uncertain terms: stay home and stay apart.
Lee signs order moving disability services for young children out of Education Department
Gov. Bill Lee welcomes delegates to a summit on economically distressed counties in Linden on Aug. 13, 2019. (Erik Schelzig, Tennessee Journal)
Gov. Bill Lee has signed an executive order to move development services for young children with disabilities out of the state Education Department. They will now be housed within the Department of Intellectual and Developmental Disabilities.
Here’s the release from the Lee administration:
NASHVILLE, Tenn. – Today, Tennessee Governor Bill Lee issued an executive order transferring the Tennessee Early Intervention System (TEIS) from the Tennessee Department of Education to the Tennessee Department of Intellectual and Developmental Disabilities to better align services for children with disabilities.
TEIS is a voluntary educational program for infants and toddlers with disabilities that supports families through child development resources. The program encourages optimal development through community and family activities.
“This program is vital to the growth and development of children with disabilities,” said Gov. Lee. “We look forward to better serving TEIS families and ensuring Tennessee is a place where people of all abilities thrive.”
Since taking office in January, this is the 10th executive order signed by Gov. Lee.
Lee signs executive order in response to February flooding
Gov. Bill Lee delivers his first State of the State address in Nashville on March 4, 2019. (Erik Schelzig, Tennessee Journal)
Gov. Bill Lee has signed an executive order in response to widespread flooding, beginning the process for seeking a federal disaster declaration in the affected counties.
Here’s the full release:
NASHVILLE — Today, Tennessee Governor Bill Lee signed an executive order enabling further recovery efforts and beginning the process for declaring a federal disaster after record rains in February caused statewide damage.
“As waters recede and we are now able to fully review the extent of flooding damage across our state, I signed an executive order as a key step in working with the federal government for further recovery efforts,” said Lee. “We thank the first responders who are working diligently to keep citizens safe and deliver services.”
Currently, 83 counties have reported damage. The Department of Agriculture, Department of Transportation and the Tennessee Emergency Management Agency (TEMA) have been coordinating with local authorities to collect the necessary data for further recovery efforts.
