Masks in Schools

By statute, the local board of education has the authority to “manage and control all public schools established.”1 Courts interpret this grant of authority broadly to include the power to regulate the dress and appearance of students while they are in school.2 Mask requirements are an extension of the board’s authority over students and teachers.

During the COVID-19 pandemic, Tennessee schools received considerable guidance from the Tennessee Department of Education on opening, closing, providing online classes, training staff, and meeting the needs of special populations.3 The Tennessee Department of Health recommended that CDC guidelines be followed in schools. (The CDC recommended that teachers, staff, and students wear cloth face coverings, as able, especially when other social distancing measures are difficult to maintain.)4

In the locally litigated case Citizens for Limited Government and Constitutional Integrity, Inc., d/b/a Recall Williamson, et al. v. Jason Golden, in his capacity as Superintendent for Williamson County Schools, et al., plaintiffs unsuccessfully challenged Williamson County Schools’ mask requirements for students.5 In an order entered April 30, 2021, Chancellor Michael W. Binkley determined that mask mandates did not constitute an equal protection violation under the Tennessee Constitution.6 The Court held that strict scrutiny did not apply because the face-covering requirement did not disadvantage a suspect class or involve a fundamental right; and the mask policy passed the rational basis test. While the Court expressed uncertainty about whether mask mandates were permitted after the Governor’s and Mayor’s orders mandating them had expired, the Court dismissed all claims against the school system because the Plaintiffs lacked standing.7 8

Similarly in ARJN #3, LLC, d/b/a Jonathan’s Grille, et al. v. John Cooper, et al., U.S. District Court Judge Eli Richardson determined that health-based restrictions are reviewed through a rational-basis test; and the party challenging the government action must negate every conceivable basis for the restriction.9 ARJN #3 was a challenge brought by the Nashville restaurant Jonathan’s Grille against officials of the Metropolitan Government of Nashville & Davidson County, asserting that the Health Director’s Orders mandating restaurant curfews and occupancy restrictions violated the restaurant’s right to equal protection and its substantive due process rights under the United States and Tennessee Constitutions.

Judge Richardson determined that rational-basis review was appropriate because the health orders did not implicate

(continued on page 23)

a fundamental right or suspect class.10 In the Court’s substantive due process analysis, Judge Richardson found the rational-basis test was met – by recognizing that the goal of the curfew and occupancy restrictions was to reduce the spread of COVID-19 in the Metro Nashville area and noting that the U.S. Supreme Court had found that “[s]temming the spread of COVID-19 is unquestionably a compelling interest.”11

The health orders also met the rational-basis test for the equal protection claim: [E]ven if Plaintiffs had plausibly alleged that restaurants were similarly situated to gyms and protests (which it does not find), Plaintiffs’ equal protection claim would still fail because the Amended Complaint does not rebut a rational basis for the distinction in treatment of restaurants and gyms/protests … the Court can conceive a rational justification for treating restaurants, where patrons are seated unmasked in close proximity, differently from protests, which occur outside and allow for mask wearing, and gyms, where patrons are better able to practice social distancing and do not serve alcohol.12

Judge Richardson concluded that whether to impose mask mandates and whether to close schools were areas within the sound judgment of state and local governments, not federal courts:

Also beyond the Court’s role is telling the Metropolitan Government of Nashville and Davidson County how, within constitutional boundaries, to respond to the threat of COVID-19. Justice Kavanaugh’s observation in a case last year, in granting a point to the majority from which he was dissenting, is clearly correct: “Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.”13

Judge Richardson’s order granting the Metropolitan Government Defendants’ motion to dismiss was not appealed.

In sum, Courts have shown a willingness to defer to the difficult policy decisions that local leaders make when responding to the on-going COVID-19 pandemic. This deference likely includes a school system’s decision to require masks.

Valuation, litigation, forensic and mediation support services require an independent and objective assessment. Price CPAs has assisted in cases involving these services.

THESE SERVICES INCLUDE:

• Minority shareholder disputes • Valuations • Wrongful Death/Personal Injury • Divorce (equitable distribution) • Commingling & Transmutation • Business damage assessment and determination • Solvency analysis and fraudulent conveyance • Litigation consulting services.

THESE SERVICES ARE LED BY THE FOLLOWING PROFESSIONALS: • Tom Price, CPA/ABV/CFF, CVA • Alan Webb, CPA • Mark Fly, CPA, ABV • Stephanie McGuire, CPA/ABV,

CFE, CAMS, MS

CONTACT US TODAY TO DISCUSS HOW WE MIGHT BE OF SERVICE TO YOU.

3825 BEDFORD AVE | STE 202 | NASHVILLE, TN 37215 615.385.0686 | www.pricecpas.com

Endnotes

1 TENN. CODE ANN. § 49-2-203(a)(2). 2 E.g., Morrison v. Hamilton Co. Board of Education, 494 S.W.2d 770 (Tenn. 1973) (county board of education regulation forbidding teachers and students from wearing beards bore a reasonable relationship to proper management of public schools). 3 https://www.tn.gov/education/health-and-safety/update-on-coronavirus.html. 4https://www.tn.gov/content/dam/tn/education/health-&-safety/ TDH%20Recommendations%20for%20the%20Management%20 of%20COVID-19%20in%20Schools.pdf 5 Williamson County Chancery No. 20CV-49753. 6 Id. § 15-17. 7https://tennesseestands.org/wp-content/uploads/2021/05/williamson. schools.memorandum.order_.pdf, at 15. 8 A motion to alter or amend has been filed but has not yet been heard. 9 ARJN #3 v. Cooper, No. 3:20-CV-00808, 2021 WL 409927, *8 (M.D. Tenn. Feb. 5, 2021). 10 Id. at *10. 11 Id. (citing Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020)). 12 Id. at *11. 13 Id. at *12.

LORA BARKENBUS FOX is the Associate Director of the Department of Law for the Metropolitan Government of Nashville and Davidson County.

MELISSA ROBERGE is the Metropolitan Attorney supervising school advice and litigation for the Metropolitan Nashville Public Schools.

Connecting Talent with Opportunity

NBA Career Center

Whether you’re a Job Seeker searching for Career Resources or an Employer looking to Search Resumes for your next all-star team member, the NBA Career Center has everything you need!

EMPLOYERS

• Post your job in front of the most qualified group of legal professionals in the industry. • Promote your jobs directly to candidates via the exclusive Job Flash email.

• Search the anonymous resume database to find qualified candidates. • Manage your posted jobs and applicant activity easily on this user-friendly site.

JOB SEEKERS

• Search and apply to more legal jobs than in any other job bank. • Upload your anonymous resume and allow employers to contact you through our Career Center’s messaging system. • Access career resources and job searching tips and tools. • Have your resume critiqued by a resume expert.

ABOUT THE NASHVILLE BAR ASSOCIATION

The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. The NBA—with over 2,500 members—is the largest metropolitan bar association in Tennessee. 150 4th Ave N, Ste 1350 • Nashville, TN 615-242-9272