Judge denies Cobb families’ request for school mask mandate order

August 12, 2021 Marietta - A protester (right) demanding mask-mandate confronts a counter-protester as they rally at the parking lot of Cobb County School District on Thursday, August 12, 2021. Cobb County schools began the 2021-22 school year with a rule that made mask wearing optional for students and staff. (Hyosub Shin / Hyosub.Shin@ajc.com)
Caption
August 12, 2021 Marietta - A protester (right) demanding mask-mandate confronts a counter-protester as they rally at the parking lot of Cobb County School District on Thursday, August 12, 2021. Cobb County schools began the 2021-22 school year with a rule that made mask wearing optional for students and staff. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

A federal judge Friday denied four parents’ request for an order that would have forced the Cobb County School District to follow Centers for Disease Control and Prevention guidelines, including a universal mask mandate in schools.

U.S. District Judge Timothy Batten denied the parents’ request for a temporary restraining order and preliminary injunction. In his order, Batten said the school district “made an informed choice that is neither arbitrary nor unreasonable,” and that the parents were asking the court to usurp the district’s authority.

The mothers of four medically vulnerable Cobb students filed the lawsuit Oct. 1 against the school district, Superintendent Chris Ragsdale and each of the seven members of the Cobb school board. The children’s health issues include acute myeloid leukemia, Duchenne muscular dystrophy and severe asthma.

ExploreParents of medically vulnerable students sue Cobb schools

Claire Sherburne, a Southern Poverty Law Center attorney, argued in court Friday that the Cobb families’ rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act are being violated. She said the children cannot safely attend Cobb schools in person while the district is not following CDC recommendations, including a mask mandate.

Masks have been optional in Cobb schools this academic year.

In a news release after the ruling, Sherburne said the case would still proceed on the disability discrimination claims.

“The SPLC will not stop advocating for students and families in Cobb County schools to ensure they receive a high-quality education free from discrimination,” she said. “In consultation with our clients, we are considering all of our options. Unfortunately, with each day that passes, our clients continue to be denied access to the in-person instruction to which they are entitled.”

A Cobb school district spokeswoman could not immediately be reached for comment.

Two of the children in the Cobb lawsuit are not receiving any education right now, Sherburne said in oral arguments before the judge. One is in a hospital/homebound education program for five hours per week, while the fourth is learning virtually, without adequate opportunities to socialize or develop work habits, Sherburne said.

“A school district’s operational discretion ends where the civil rights of its students begin,” she said.

In his order, Batten said Cobb’s virtual learning program reasonably accommodates families concerned about the safety of in-person learning.

Around the country, courts have been called on to settle clashes over masks in schools. Much of the current wrangling concerns states, including neighboring South Carolina and Florida, that are attempting to ban local school districts from mandating masks. Sherburne said she was not aware of any other court cases in the country seeking a ruling similar to the Cobb families’ request.

Cobb is the 25th-largest school district in the nation, with about 107,000 students and 18,000 employees.

Parents in Fulton and Gwinnett Counties sued in local courts this fall to overturn their school districts’ mask mandates. The Fulton parents lost their case but plan to appeal. A ruling has not yet been made in Gwinnett.

ExploreGwinnett parents argue against school mask mandate in court

The Crawford County School District, near Macon, is facing a federal lawsuit from a parent who seeks to overturn that district’s mask mandate.

“These suits are going in opposite directions,” Batten said.

Batten also asked Sherburne to answer for declining COVID-19 case rates and efforts to roll out vaccines soon to elementary-aged children. Sherburne responded that the CDC hasn’t rescinded its guidance, the Cobb County Commission on Thursday extended its COVID-19 state of emergency and the transmission rate remains high, according to the local public health department.

The Cobb school district required masks last academic year. Parents in the spring sued to block the mandate, but a different federal judge rejected their request.

Sherry Hall Culves, the Cobb school district’s attorney, said the parents didn’t go through an administrative process before suing.

Culves said Cobb schools have similar or lower per-capita COVID-19 rates compared to four out of five neighboring school districts with mask mandates. Marietta City Schools announced Thursday that it would revert next week to a mask-optional policy.

“The district’s safety measures are working,” Culves said.

All four children in the lawsuit are meeting grade-level standards and earning mostly As and Bs, she said.

“This is not the type of situation that warrants an emergency injunction that impacts 125,000 other people,” she said.

The judge said he was troubled by an email that David Banks, vice chairman of the Cobb school board, sent to parents Oct. 3 from his official board account. Among other things, the email said masks do not protect against any virus and more than 122,000 people had died from COVID-19 vaccines.

“The government is intentionally killing its citizens,” Banks wrote in the email.

Banks’ opinion is not binding on the school district and no board member has individual authority to make decisions, Culves said.