R.K. v. Lee
| Decision Date | 24 September 2021 |
| Docket Number | 3:21-cv-00725 |
| Citation | 563 F.Supp.3d 774 |
| Parties | R.K. et al., Plaintiffs, v. Governor Bill LEE, in his official capacity as Governor of Tennessee et al., Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
Brice M. Timmons, Bryce W. Ashby, Craig A. Edgington, Robert A. Donati, Donati Law Firm LLP, Memphis, TN, Jessica F. Salonus, The Salonus Firm, PLC, Jackson, TN, Justin S. Gilbert, Gilbert McWherter Scott Bobbitt PLC, Chattanooga, TN, for Plaintiffs.
Alexander Stuart Rieger, Colleen E. Mallea, Reed Neal Smith, Tennessee Attorney General's Office, Nashville, TN, James R. Newsom, III, Harris, Shelton, Hanover & Walsh, PLLC, Matthew R. Dowty, Office of the Tennessee Attorney General and Reporter, Memphis, TN, for Defendant Governor Bill Lee.
Courtney M. King, Lisa M. Carson, Buerger, Moseley & Carson, PLC, Franklin, TN, for Defendant Williamson County Board of Education.
Charles W. Cagle, Lewis, Thomason, King, Krieg & Waldrop, P.C., Nashville, TN, for Defendant Franklin Special School District.
Plaintiffs, R.K. and W.S. are two disabled public-school students who brought this action against Governor Bill Lee, the Williamson County Board of Education ("Williamson County"), and the Franklin Special School District ("Franklin"). They seek relief for themselves as well as a "class of similarly situated individuals consisting of all students with disabilities that make them medically vulnerable to severe infection and/or death from COVID-19 and who attend public school in Williamson County, Tennessee." (Doc. No. 1 ¶ 46). Plaintiffs seek to enjoin the Governor from enforcing Executive Order No. 84, which allows parents to opt their children out of Williamson County's and Franklin's temporary universal mask mandate requirements. Plaintiffs allege that Executive Order No. 84, to which the Williamson County and Franklin school systems must adhere, violates the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq. , and Section 504 of the Rehabilitation Act (" Section 504"), 29 U.S.C. § 794(a).
Defendants have each responded. (Doc. Nos. 15, 16). Governor Lee filed a response opposing Plaintiffs’ request for injunctive relief. (Doc. No. 16). Williamson County filed a response indicating that it takes "no position" on Plaintiffs’ request. (Doc. No. 15). Franklin Special School District did not file a response but stated on the record in open court on September 20, 2021 that it adopted Williamson County's response. (Doc. No. 18).
For the following reasons, the Court finds that, based on the record before the Court, Plaintiffs have met the standard for issuance of a temporary injunction prohibiting the enforcement of Executive Order No. 84 pending the evidentiary hearing set on October 5, 2021. (Id. ).
On August 16, 2021, Governor Lee issued Executive Order No. 84, which states that "a student's parent or guardian shall have the right to opt out of any order or requirement for a student in kindergarten through twelfth-grade to wear a face covering at school, on a school bus, or at school functions, by affirmatively notifying in writing the local education agency or personnel at the student's school." See Exec. Order No. 84, State of Tennessee (August 16, 2021). There is no requirement that parents have a reason to exercise the opt-out. (Id. ).
Plaintiffs are at high risk for severe COVID-19 infection due to their underlying health conditions. (Doc. No. 4-1 at 2, 4; see also Doc. Nos. 4-3 ¶ 7, 4-6 ¶¶ 13, 19). They are seeking a "reasonable accommodation" of universal mask mandates because they "are medically vulnerable to severe outcomes should they become infected with COVID-19." (Id. ¶ 12; see also Doc. No. 4-3 ¶ 13). They also seek protection against discrimination under the ADA and Section 504. (Doc. No. 4-1 at 10).
R.K. is a 13-year-old seventh grader in Williamson County with Down syndrome. (Id. at 5; see also Doc. Nos. 1 ¶ 12, 4-3 ¶ 2). According to R.K.’s mother, R.K. is "four times more likely to be hospitalized and ten times more likely to die as a result [COVID-19] as compared with the general population." (Doc. No. 4-3 ¶ 3). R.K's mother also believes that in "one of [her] children's elementary schools, there are 5 children in just one classroom who have tested positive for COVID-19, but the other students in that classroom are still in school and are not even required to wear a mask." (Id. ¶ 10). As a result, R.K.’s mother has "instructed R.K.’s teachers to help her keep her distance as best as possible so as to try to lessen the risk that her teachers might spread COVID-19 to her as they also have a high mask opt-out rate." (Id. ¶ 12). But these requests, she says, "do nothing to mitigate the true danger that [R.K.] is in [because of] the number of unmasked students, teachers, and staff at her school." (Id. ).
W.S. is a seven-year-old second grader at Franklin with type-1 diabetes. (Doc. No. 4-1 at 6; see also Doc. No. 4-4 ¶¶ 2–3). According to W.S.’s mother, W.S. was infected with COVID-19 at school due to inadequate mask wearing compounded by Executive Order No. 84. (See Doc. No. 4-4 ¶ 8). W.S.’s infection "required 14 straight intensive hours of effort and consultation with her treating physician to regulate her blood sugar levels back to a normal range." (Doc. No. 1 ¶ 13; see also Doc. No. 4-4 ¶¶ 7–9). W.S. is not old enough to be vaccinated, and her mother believes that many of W.S.’s classmates have opted out of wearing masks. (Doc. No. 4-4 ¶¶ 7, 10). W.S.’s mother remains concerned "that [W.S.] may be reinfected if her school does not universally require masks for all students and teachers." (Id. ).
It is hard to find a corner of American society that has not been affected by COVID-19 over the past eighteen months. According to the Centers for Disease Control ("CDC") the virus’ ubiquity is due, in part, to the ease with which it spreads when people cough, sneeze, or even talk. See CDC, Scientific Brief: SARS-CoV-2 Transmission (May 7, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/sars-cov-2-transmission.html; (see also Doc. Nos. 4-5 ¶ 11, 4-6 ¶ 8).
Those with underlying health conditions, including children, are at an increased risk for severe infection, hospitalization, or death from COVID-19. (Doc. No. 4-6 ¶ 13). The CDC has found that "children with medical complexity, with genetic, neurologic, metabolic conditions, or with congenital heart disease can be at increased risk for severe illness from COVID-19." CDC, COVID-19: People with Certain Medical Conditions (May 13, 2021), https://www.cdc.gov/coronavirus/2019-ncov-need-extra-precauations/people-with-medical-conditions.html. "[C]hildren with obesity, diabetes, asthma or chronic lung disease, sickle cell disease, or immunosuppression can also be at increased risk for severe illness from COVID-19." Id.; (see also Doc. Nos. 4-5, 4-6). Plaintiffs’ expert1 Dr. Sarah Williams confirmed the risk to disabled students and noted that "at least one" child with a preexisting condition placing them at a heightened risk for serious COVID-19 infection "is present in nearly every classroom in Williamson County." (Doc. No. 4-6 ¶ 16).
The spread of the Delta variant, which is twice as contagious as prior variants, poses an especially foreboding threat to children with underlying conditions. (Doc. Nos. 4-5 ¶ 8, 4-6 ¶ 6). According to Dr. Williams, the Delta variant has contributed to "increasing numbers of break through cases in children and adults alike who have been vaccinated." (Doc. No. 4-6 ¶ 19). Recently, children accounted for 36% of all COVID-19 cases in Tennessee. (Doc. No. 4-1 at 5). And cases continue to spike in Williamson County. (Doc. Nos. 4-3 ¶ 9, 4-6 ¶ 6). In August 2021, 33% of students and 30% of staff were absent from Williamson County middle schools alone due to COVID-19. (Doc. No. 1-1). It appears that Williamson County schools may have had at least 55 staff members and 170 students in isolation with a confirmed positive case of COVID-19 every week from September 3, 2021 through September 21, 2021. See Williamson County Schools, COVID-19 Numbers 2021-22 (September 21, 2021), https://www.wcs.edu/Page/8641.
The CDC has found that masks are effective in reducing the spread of COVID-19.
(See Doc. No. 4-6 ¶ 25 ; -,NASHVILLE% 2C% 20Tenn.,Commissioner% 20Lisa% 20Piercey% 20said% 20Wednesday. And according to Dr. Sara Cross, who was appointed by Governor Lee to Tennessee's Coronavirus Task Force, "the failure to implement a universal masking policy in schools will likely lead to extremely high rates of transmission of COVID-19 in the classroom setting." (Doc. No. 4-5 ¶¶ 4, 20).
In August 2021, recognizing that their schools...
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R.K. v. Lee
...Plaintiffs claim; they are not suing for individualized, specific claims under IEPs. That is what this Court held in R.K. v. Lee, 563 F.Supp.3d 774, 784-85 (M.D. Tenn. 2021), as did the Western District in G.S., 558 F.Supp.3d at 610-11, and the Eastern District in S.B., 566 F.Supp.3d at 846......