Legal Maneuvers

Betsy Henderson and Kristi Kristy

Legal Maneuvers

Three school board members ask County Commission for authority to hire their own attorney in the school mask lawsuit.

by jesse fox mayshark • February 16, 2022

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Betsy Henderson and Kristi Kristy

school board member Betsy Henderson speaks to county commission tuesday night, while school board Chair Kristi Kristy observes.

Frustrations over the court-imposed mask mandate in Knox County Schools boiled over Tuesday evening at a Knox County Commission work session, as three members of the school board sought authority to hire an outside attorney.

Knox County Mayor Glenn Jacobs also argued for outside counsel in the mask case.

School board Chair Kristi Kristy and board members Betsy Henderson and Susan Horn appeared before Commission voicing dissatisfaction with the work of the county Law Department on the lawsuit that has put students and teachers under a mask order since last September.

“I do respect the amount of time the Law Department has been putting into this case,” Kristy told commissioners. “But we have 60,000 kids and 8,000 employees that are affected by this universal masking because of four plaintiffs.”

Four Knox County students with disabilities and their families brought the lawsuit last fall under the Americans with Disabilities Act (ADA), seeking health protections in schools as the Delta variant of COVID-19 was surging. The school board had voted against maintaining masks and other protocols that had been in place during the previous school year.

U.S. District Court Judge J. Ronnie Greer issued a temporary injunction on Sept. 24 requiring face masks in county school buildings and buses to protect vulnerable students from the virus. The order has remained in place for the nearly five months since, despite motions by the county Law Department and an appeal for relief to the 6th U.S. Circuit Court of Appeals.

“We need outside counsel for this,” Henderson told commissioners. “The Law Department hasn’t presented any medical experts or additional facts, they’ve just filed the same case they keep losing. And who’s losing out are our children.”

About 30 parents opposed to the mask mandate attended the meeting to support the board members' request.

Henderson and Kristy sent a letter to county Law Director David Buuck last week requesting the appointment of an outside counsel. Buuck, who is independently elected, refused. That prompted Henderson, who is running for re-election to her 6th District seat, to use the hashtag #FIREBUUCK on her campaign social media.

A Matter of ‘Bandwidth’

Tuesday night, county commissioners were presented with a resolution seeking new representation for the school board just minutes before the work session began. After an hour of discussion — which included questions about whether Commission could even force the Law Department to hire outside counsel — commissioners voted to send the matter on for consideration at their regular monthly meeting next Tuesday.

Knox County Mayor Glenn Jacobs, a strong critic of mask mandates in general and the school order in particular, also spoke up on behalf of the board members.

“This case is about more than Knox County Schools,” he told commissioners. “If we go by the logic of (Greer’s) order, essentially any Knox County building, really any public building, could also be subject to the same terms.”

Jacobs said he respects Buuck and his staff, but he thinks the case requires more focused attention. “They don't have the bandwidth for something like this, frankly, and the expertise,” he said. “You just need the best (lawyer) you can find.”

The county mayor has had his own battles with the Law Department — primarily with Buuck's predecessor, Bud Armstrong — and has twice hired outside counsel with approval from Commission.

Buuck is the only elected county law director in Tennessee, a quirk in Knox County that dates back more than 80 years. As such, his office represents all of county government but does not answer directly to anyone. Periodic proposals to abolish the office and allow county officials to hire their own attorneys have failed, most recently in 2020.

At Tuesday’s meeting, Buuck defended his attorneys’ handling of the lawsuit and blamed the mask mandate entirely on Greer. He said that he agreed with the board members’ complaints about the order and that his office has been trying to get it lifted.

“There seems to be this feeling out there that, ‘Oh, we'll just get another attorney that’s got some ADA experience and bingo, everything will go away, Judge Greer will change his mind,’” Buuck said.

But he said Greer made clear in his order that “if there’s one child running the risk — one child — then he feels it’s his duty to order this mask mandate.” He added, “How are we going to overcome that?”

Buuck also noted that the three school board members who appeared Tuesday night did not represent a majority of the nine-member board — and that in a vote last week, five other board members opted to direct the county Law Department to continue pursuing the case.

That’s the official act of the Board of Education, not the request that the (board) members are making here,” he said. 

Looking for a Way Out

Kristy said the resolution was just seeking authorization to hire an outside counsel and that the full board would still have to vote to do so.

This is far from the first time that Knox County school board members have chafed at their representation by the Law Department. School boards locked in funding battles with County Commission sought outside counsel in both the early 1990s and early 2000s.

The latter tussle produced a court ruling that Buuck cited last night, which affirmed the Law Department’s stature as official counsel for the school system but said the law director could appoint an outside attorney if he believed his office had a conflict of interest in a case. He said no such conflict exists in the case that produced the mask order.

“Commission under the (county) charter has no authority to order the law director (to hire outside counsel),” Buuck said. He added that he was “open” to the school board hiring its own legal expert to provide advice to the Law Department — but not to litigate the lawsuit.

Henderson rebuked Buuck for what she suggested was disengagement from the case. She corrected assertions he made about the number of students with disabilities in county schools and chided his failure to find medical experts to testify.

“​​This is the most important case going on in Knox County right now,” Henderson told Buuck. “The most important case, and you don't even know the basic facts of what's going on in it.”

Several county commissioners seemed conflicted, mostly saying they wanted to find some way to help lift the mask mandate in county schools.

“The idea of suffocating 60,000 kids a day just gets my blood pumping, gets me pretty upset,” said Commissioner Kyle Ward. “And I know that if it was my kid that I would want the Michael Jordan of lawyers on my side.”

Commission Vice Chair Justin Biggs said parents want to know if there’s some end date to the mask requirement. “I'm just wanting to see, is there a light at the end of the tunnel?” Biggs asked. “What can we tell parents — the direction, where we’re at, do we even know where we’re at?”

But most commissioners also seemed to agree with Buuck that the resolution presented to them by the school board members would need to be rewritten to be legal under the county charter. A new version may be forthcoming at next Tuesday’s Commission meeting.

In the meantime, Buuck said his office has initiated negotiations with the plaintiffs in the lawsuit, as was also directed in a separate school board vote last week. But Kristy, the board’s representative in those talks, told commissioners not to hang too much hope on the prospect of an agreement.

“Being involved in those (talks), I don’t want to give anybody any false expectations that we’re going to come back next week and say, ‘Hey, no masks,’” she said. “Because I’m not that optimistic from what I’ve seen in that.”