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Tennessee on the hook for legal fees from 2021 COVID-19 pandemic masking suit

Young girls wearing protective masks running on sidewalk
MoMo Productions/Getty Images
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Young girls wearing protective masks running on sidewalk

Parents of kids with disabilities challenged a Gov. Bill Lee executive order allowing grade-school students to opt out of masks

An executive order issued by Gov. Bill Lee during the height of the COVID pandemic will now cost Tennessee taxpayers at least $129,000, a federal appeals court ruled Monday.

The U.S. Sixth Circuit Court of Appeals’ decision appears to bring to a close a case that began with Lee signing an executive order in August 2021 that allowed grade-school students to opt out of mask mandates.

Two Shelby County students with disabilities — along with their parents — filed suit, alleging their medical conditions made them vulnerable to illness or death from the virus. At the time, children under 12 were not yet eligible for the COVID vaccine. Kids with medical conditions and disabilities stayed out of classes where other kids went without masks, a “separate but equal” scenario their lawyers argued violated the Americans with Disabilities Act.

A federal judge issued a preliminary injunction on Sept. 17, 2021, preventing the governor from enforcing the executive order. The decision was later upheld by the Sixth Circuit, which concluded the students had “not only shown that the accommodations of indoor masking is reasonable, but also that the (Executive Order) rejected this accommodation in favor of more costly, inefficient alternatives.”

As the case played out in the courts, with more plaintiffs joining in, the Tennessee General Assembly in November 2021 enacted new law on mask mandates that provided for reasonable accommodations for students with disabilities, and the governor terminated his executive order.

The families have been fighting for the state to cover their legal bill ever since.

The Sixth Circuit on Monday agreed that the four attorneys representing the families are entitled to $129,398 in legal fees — an amount that does not include any additional legal costs associated with defending the families in the governor’s most recent appeal.

The court dismissed the state’s arguments that the families could not be considered the prevailing — or winning — parties in a case that did not get past a preliminary injunction stage and was ultimately mooted by legislation the governor “voluntarily” signed into law.

Those arguments did not sway a three-judge panel of the Sixth Circuit.

“The students requested a preliminary injunction enjoining enforcement of the (Executive Order) and requiring Shelby County to enforce its mask mandate in grade schools with no opt-out provision…that is precisely what they received,” their opinion said.

This story was originally published by the Tennessee Lookout.

Anita Wadhwani is a senior reporter for the Tennessee Lookout. The Tennessee AP Broadcasters and Media (TAPME) named her Journalist of the Year in 2019 as well as giving her the Malcolm Law Award for Investigative Journalism. Wadhwani is formerly an investigative reporter with The Tennessean who focused on the impact of public policies on the people and places across Tennessee. She is a graduate of Columbia University in New York and the University of California at Berkeley School of Journalism. Wadhwani lives in Nashville with her partner and two children.
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