Legal challenges likely coming for Gov. Bill Lee's executive order on mask mandates

Tennessee State Capitol Dome.jpeg
Posted at 4:37 PM, Aug 17, 2021

NASHVILLE, Tenn. (WTVF) — Governor Bill Lee's executive order allowing parents to opt their children out of mask mandates is drawing plenty of controversy.

Some are even wondering if the governor's order on masks is even legal. The answer to that question may depend on your point of view.

Most agree there is little doubt - lawsuits are pending. A school district will file to challenge the governor's authority. A parent will challenge a school board that keeps a maskless kid out of class. Or both will happen.

"It is tremendously controversial," said attorney David Raybin.

To be clear: The option of virtual schooling is off the table. Students are back with in-person classes.

A handful of districts across the state have mandated masks for all students to protect against the spread of COVID-19, especially among so many younger students who can't be vaccinated yet.

But on Monday, the governor issued Executive Order No. 84, allowing parents to opt their children out of the mask requirement.

"This is an extremely volatile situation," said Raybin, who is an expert on the Tennessee constitution, having argued many cases on the separation of powers.

Did the governor overstep his power with his decision on mask mandates?

"Under the statute, the governor had the authority to issue that order," said Raybin.

State statutes supersede county ordinances, but it's not clear whether the governor has the power to actually regulate how a school system operates. That's likely the issue that will be taken to court.

"There's potential for it," said Metro School Board Chair Christiane Buggs. "You cannot educate a dead child."

Buggs masks her own 3-year-old every school day for safety.

Since the executive order was issued, she's talked to other board chairs in counties across the state and they all worry the governor's order sets the stage for a potential disaster leading to more sickness and shutting things down.

"What happens when our almost 300 positive cases in MNPS doubles, triples, quadruples or goes up into the thousands? What happens when we shut down not just classrooms, but multiple schools?" said Buggs.

Lawyers for school boards across the state are still evaluating potential legal challenges to the governor's order.

If school board members or teachers simply ignore the order, it could be considered a Class A misdemeanor. However, in Metro Nashville, District Attorney Glenn Funk said he will not prosecute local school officials who violate the governor's executive order.

"I will not prosecute anyone for keeping children safe," he explained in an email obtained by NewsChannel 5.