R.K. v. Lee

• Decision Date: 22 October 2021
• Docket Number: 3:21-cv-00725
• Citation: 568 F.Supp.3d 895
• 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

568 F.Supp.3d 895

R.K. et al., Plaintiffs,

v.Governor Bill LEE, in his official capacity as Governor of Tennessee et al., Defendants.

No. 3:21-cv-00725

United States District Court, M.D. Tennessee, Nashville Division.

Signed October 22, 2021

Brice M. Timmons, Bryce W. Ashby, Craig A. Edgington, Robert A. Donati, Donati Law Firm LLP, Memphis, TN, Gautam S. Hans, Vanderbilt Legal Clinic Vanderbilt Law School, Nashville, TN, Jeffrey Dubner, Pro Hac Vice, Samara Spence, Pro Hac Vice, Washington, DC, Jessica F. Salonus, The Salonus Firm, PLC, Jackson, TN, Justin S. Gilbert, Gilbert McWherter Scott Bobbitt PLC, Chattanooga, TN, for Plaintiffs R. K., W. S.

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.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Pending before the Court is Plaintiffs’ fully briefed Motion for Preliminary Injunction. (Doc. Nos. 4, 4-1, 34, 35, 39, 45, 52, 54-1¹ , 59, 80, 81, 82, 83). Plaintiffs seek relief for themselves and a class of similarly situated disabled public-school students. Specifically, they request an order enjoining Governor Lee from enforcing Executive Order No. 84, which gives parents a unilateral right to opt their children out of temporary universal mask mandates imposed by the Williamson County Board of Education ("Williamson County") and the Franklin Special School District ("Franklin").² Plaintiffs allege that the Executive Order 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.

On September 24 and October 5, 2021, with notice to all parties, the Court issued a temporary injunction pending an evidentiary hearing on Plaintiffs’ motion. (Doc. Nos. 30, 69). On October 5 and 13, 2021, the Court held an evidentiary hearing. At the hearing, the Court heard testimony from Dr. Sara Cross, Dr. Marilyn Augustyn, Dr. Jason Abaluck, Dr. Jay Bhattacharya, Ms. Rachel Suppé, and R.K.’s mother.³ Dr. Cross, Dr. Augustyn, Dr. Abaluck, and R.K.’s mother testified on behalf of Plaintiffs. Dr. Bhattacharya and Ms. Suppé testified on behalf of Governor Lee. All parties filed post-hearing briefs. (Doc. Nos. 80, 81, 82, 83).

Having applied the credible evidence to the factors for issuance of a preliminary injunction, the Court finds all of the factors favor Plaintiffs. Pending trial, Governor Lee is enjoined from enforcing Executive Order No. 84, as extended by Executive Order No. 89, in Williamson County or allowing parents to opt out of either the Williamson County Board of Education or Franklin Special School System's mask mandates.

I. FINDINGS OF FACT⁴

A. Executive Order No. 84

On August 16, 2021, Governor Lee issued Executive Order No. 84, which states, in part, 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 opt out. (Id. ). On September 30, 2021, Governor Lee extended the Executive Order through November 5, 2021 at 11:59 p.m. (See Doc. Nos. 50, 50-2).⁵

Plaintiffs are public-school students 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; Doc. No. 82 at 2). They are seeking, as a "reasonable accommodation," unrestricted enforcement of the Williamson County and Franklin school systems’ mask mandates to help protect themselves and other children who "are medically vulnerable to severe outcomes should they become infected with COVID-19." (Id. ¶ 12; see also Doc. No. 4-3 ¶ 13; Doc. No. 82 at 2). Plaintiffs also seek protection against discrimination under the ADA and Section 504. (Doc. No. 4-1 at 10; see also Doc. No. 82 at 1).

Plaintiff R.K. is a 13-year-old seventh grader in Williamson County with Down syndrome

. (Doc. No. 4-1 at 5; see also Doc. Nos. 1 ¶ 12, 4-3 ¶ 2). R.K.’s mother is a board-certified physician in both allergy and immunology. (Hr'g Tr., Doc. No. 77 at 13:6–7). She also treats children who are infected with COVID-19. (Id. at 13:24–14:14). The Court finds R.K.’s mother highly knowledgeable and credible on the subjects of COVID-19, its effect on disabled children, and mitigation efforts. R.K.’s mother persuasively testified that 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; see also Hr'g Tr., Doc. No. 77 49:13–51:7; Hr'g Ex. 3).

Concerned about the rising number of COVID-19 cases in Williamson County, R.K.’s mother kept R.K. home from school to keep her "safe at a time when the number of cases were skyrocketing." (Hr'g Tr., Doc. No. 77 at 31:14–20). Although R.K. has now been attending classes in person, her mother remains concerned about her health due to the large percentage of unmasked students and staff. (See Doc. No. 4-3 ¶ 10). R.K.’s mother credibly testified that even if her daughter wears a mask, she "is not fully protected from others spreading the virus to her, in particular if the others are not wearing masks in high percentages." (Hr'g Tr., Doc. No. 77 at 21:24–22:5). R.K.’s mother has therefore "instructed R.K.’s teachers to help [R.K.] 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. ).

R.K.’s mother also credibly testified that virtual schooling options, if offered by Williamson County, would not be a healthy alternative for R.K. According to R.K.’s mother, R.K. "really struggled emotionally" and "lost all of her typical friends" when attending school online during the 2020 school year. (Hr'g Tr., Doc. No. 77 at 40:21–24). Because R.K. struggled with her happiness and overall emotional well-being, R.K.’s mother returned R.K. to school in person toward the end of the 2020-2021 school year. (Id. at 21:6–10). She did so because Williamson County had imposed a temporary universal mask mandate that, in conjunction with other mitigation measures, had been effective in keeping COVID-19 cases low within the school. (Id. at 21:11–13). After R.K.’s mother allowed R.K. to attend school in-person, however, she learned that Williamson County amended its mask mandate to comply with Executive Order No. 84, and that the school was therefore "not going to continue the same level of precautions that they had the prior year." (Id. at 21:15–19). R.K.’s mother believes that Executive Order No. 84 violates R.K.’s "right to be safe and her right to health in a public-school setting," (Id. at 26:17–18), because more students do not wear masks.

Plaintiff W.S. is a seven-year-old second grader at Franklin with type-1 diabetes

. (Doc. No. 4-1 at 6; see also Doc. Nos. 4-4 ¶¶ 2–3, 70-1 at 9:18–20). 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; see also Doc. No. 70-1 at 22:25–23:3). 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; Doc. No. 70-1 at 27:22–28:1). 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.; see also Doc. No. 70-1 at 32:7–13).

B. COVID-19 in Children with Underlying Health Conditions

Those with underlying health conditions, including children such as R.K. and W.S., are at an increased risk for severe infection, hospitalization, or death from COVID-19. (Doc. No. 4-6 ¶ 13; see also Hr'g Tr., Doc. No. 77 at 38:4–6, 50:17–18). The Centers for Disease Control (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 presented strong and persuasive expert testimony regarding the adverse effect of COVID-19 on children with underlying health conditions. Dr. Cross is a board-certified infectious disease physician who practices at Regional One Health in Memphis. (Hr'g Tr., Doc. No. 77 at 73:8–13; 76:10–12). She also was appointed by Governor Lee to the Tennessee Coronavirus Task Force. (Id. at 77:9–14). Dr. Cross, R.K.’s mother, and Dr. Elizabeth Williams,⁶ in a sworn statement, confirmed the heightened...