R.K. v. Lee

• Decision Date: 10 December 2021
• Docket Number: : 3:21-cv-00853
• Parties: R.K., a minor, BY AND THROUGH her mother and and next friend, J.K.; W.S., a minor, by and through her parent and next friend, M.S.; S.B., a minor, by and through his parents and next friends, M.B and L.H.; M.S., a minor, by and through her parent and next friend, K.P.; T.W., a minor, by and through her parent and next friend, M.W.; M.K., a minor, by and through her parent and next friend, S.K.; E.W., a minor, by and through his parent and next friend, J.W.; and J.M., a minor, by and through her parent and next friend, K.M.; and on behalf of those similarly situated, Plaintiffs, v. Bill LEE, in his official capacity as Governor of Tennessee; and Penny Schwinn, in her official capacity as Commissioner of the Tennessee Department of Education, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

575 F.Supp.3d 957

R.K., a minor, BY AND THROUGH her mother and and next friend, J.K.; W.S., a minor, by and through her parent and next friend, M.S.; S.B., a minor, by and through his parents and next friends, M.B and L.H.; M.S., a minor, by and through her parent and next friend, K.P.; T.W., a minor, by and through her parent and next friend, M.W.; M.K., a minor, by and through her parent and next friend, S.K.; E.W., a minor, by and through his parent and next friend, J.W.; and J.M., a minor, by and through her parent and next friend, K.M.; and on behalf of those similarly situated, Plaintiffs,

v.Bill LEE, in his official capacity as Governor of Tennessee; and Penny Schwinn, in her official capacity as Commissioner of the Tennessee Department of Education, Defendants.

No: 3:21-cv-00853

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

Filed December 10, 2021

Brice M. Timmons, Bryce W. Ashby, Craig A. Edgington, 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.

MEMORANDUM OPINION

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

On November 12, 2021, after the Tennessee General Assembly convened a special session for only the third time in its history, Governor Bill Lee signed into law an entirely new provision in the Tennessee Code: "Title 14 – COVID-19." Tenn. Code Ann. § 14-1-101 et seq. Chapter 2 of that law sets forth "Uniform Standards" relating to vaccinations

and masking, including Section 104 that, with limited exceptions, prohibits school districts from requiring individuals to wear face coverings while on school property. Id. § 14-2-104.¹ Another provision of the Act removes authority from local health entities, officials, and schools to quarantine a person who has COVID-19. Id. § 14-4-101(b).

Within hours of the statute's passage, the parents and next friends of eight children – on behalf of themselves and all other Tennessee school children whose disabilities place them at increased risk for severe illness from COVID-19 – filed suit in this Court. They allege that the new law violates (1) the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et. seq. ; (2) Section 504 of the Rehabilitation Act (" Section 504"), 29 U.S.C. § 794(a) ; and (3) the United States Constitution, specifically the Equal Protection Clause of the Fourteenth Amendment, and the Supremacy Clause set forth in Article VI, clause 2. In addition to filing a Verified Complaint (Doc. No. 1), Plaintiffs filed a "Motion for Temporary Restraining Order and Preliminary Injunction" (Doc. No. 5).

On November 19, 2021, the Court held an evidentiary hearing on Plaintiffs’ Motion. Pre-and post-hearing briefs and responses have been received, the last of which was filed on December 2, 2021. (Doc. Nos. 23, 27, 41, 42, 43, 44). Based upon the evidence that has been received, and having fully considered the parties’ arguments and the applicable law, the Court hereby enters the following Findings of Fact and Conclusions of Law in accordance with Rule 65 of the Federal Rules of Civil Procedure.²

I. Findings of Fact

1. The children on behalf of whom suit has been filed are identified in the Verified Complaint by their initials and range in age from seven to fourteen years old. Each has been identified by his or her school as a student with a disability.

2. According to the allegations in the Verified Complaint (which Defendants do not dispute for purposes of the pending motion), each Plaintiff is at risk of serious illness or death were he or she to contract COVID-19. R.K. has Down syndrome

and substantially limited cognitive abilities. W.S. has Type-1 diabetes. S.B. has substantial medical conditions, including chronic lung disease and an autoimmune condition, and is required to use a feeding tube and daily inhaler. M.S. has Joubert Syndrome, a rare genetic disorder involving brain malformation that impairs her cognitively, and precludes her from standing, walking, crawling, and bearing weight. T.W. has Shone's Complex, a rare congenital heart disease, has undergone numerous open-heart surgeries, and has epilepsy. M.K. has asthma requiring an inhaler regimen. E.W. has autism and severe ulcerative colitis. J.M. suffers from primary immunodeficiency and is prone to illness. (Doc. No. 1, Cmplt. ¶¶ 21-28).

3. Plaintiffs attend classes in school districts spread across Tennessee. R.K. attends Williamson County Schools; W.S. attends school in the Franklin Special School District; S.B., M.S., T.W., and M.K. go to school in the Knox County School District; E.W. attends classes in the Collierville Municipal School District; and J.M. is in the Germantown Municipal School District.

4. Defendant Bill Lee is the Governor of Tennessee and as such has "[t]he supreme executive power of this state[.]" Tenn. Const. art. III, § 1. Defendant Penny Schwinn is the Commissioner of the Tennessee Department of Education ("TDOE") and, by statute, "is responsible for the implementation of law or policies established by the general assembly or the state board of education." Tenn. Code. Ann. § 49-1-201(a).

5. The State of Tennessee, the Office of the Governor, and TDOE are public entities within the meaning of the ADA. They are also recipients of federal financial assistance within the meaning of the Rehabilitation Act and the American Rescue Plan Act of 2021 ("ARPA"), Pub. L. No. 117-2, 134 Stat. 4 (Mar. 11, 2021).

6. This far into the pandemic, it almost goes without saying that SARS-CoV-2 – the virus that causes COVID-19 – has wreaked and continues to wreak havoc across this country in countless ways. By the end of November 2021, more than 780,000 Americans had died from the virus, and more than 48 million cases of the virus had been confirmed. www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview (all websites last visited December 3, 2021).³ By that same time, Tennessee had almost 1.3 million confirmed or probable cases, and more than 16,600 confirmed or probable deaths from the virus. https://www.tn.gov/health/cedep/ncov/data.html.

7. For those who do not succumb to the virus, the symptoms can range from the relatively unnoticeable, to the mild (such as fever or chills, coughing, fatigue, muscle or body aches, headaches, loss of taste or smell, a sore throat and/or congestion), to extreme cases requiring hospitalization and use of a ventilator. www.cdc.gov/coronavirus/2019-ncov/symptoms-testing. Thus far, more than 3.2 million individuals have been hospitalized in the United States with COVID-19, with the weekly hospital average now hovering around 5,000 to 5,500 new patients. https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index. Figures for the total number of Tennesseans hospitalized for COVID-19 since the pandemic began are hard to come by, but 890 Tennesseans were hospitalized with COVID-19 on November 1, 2021, and 694 were hospitalized with the virus on November 17, 2021, and 851 were hospitalized on December 1, 2021. http://www.tn.gov/health/cedep/ncov/data/hospitalization-data/current-covid-hospitalizations.html.

8. The virulence of the virus is due in large part to the ease with which it is transmitted. The CDC has identified "three main ways" in which COVID-19 is spread: (A) "breathing in air when close to an infected person who is exhaling small droplets and particles that contain the virus"; (b) "having these small droplets and particles that contain virus land on the eyes, nose, or mouth, especially through splashes and sprays like a cough

or sneeze" and (c) "touching eyes, nose, or mouth with hands that have the virus on them." https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.

9. The ease of transmission through tiny droplets and aerosols that land on others is only compounded by the fact that individuals may remain asymptomatic when carrying the virus. Further, for those that do eventually become ill, the incubation period can be anywhere from a couple of days to two weeks, during which time the carrier can transmit the virus to others. In short, a person can spread the virus without even knowing that he or she has contracted COVID-19. https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html#:~:text=The% 20incubation% 20period% 20for% 20COVID,from% 20exposure% 20to% 20symptoms% 20onset.&text=One% 20study% 20reported% 20that% 2097.5,SARS% 2DCoV% 2D2% 20infection.

10. The perniciousness of the virus is also due in part to its ability to mutate into variants. Most prevalent at this time in the United States is the Delta variant. According to the CDC, this variant spreads faster and is more than two-times as contagious as the original strain. https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html. Furthermore, while the science behind it is still developing, early data suggest that "patients infected with the Delta variant were more likely to be hospitalized than patients infected with Alpha or the original virus that causes COVID-19." Id.

11. Whichever the variant, some individuals are more prone than others to catch the virus and develop serious health complications as a result. This includes older adults, as well as those with any of a number of medical conditions, including cancer

, cerebrovascular disease, certain chronic kidney or lung diseases, diabetes, certain heart conditions, Down syndrome, an immuno-compromised state, obesity, and specified mental health disorders, among other things. www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-care/underlyingconditions.

12. Even though "COVID-19 tends to be milder in children compared with adults, it can make children very sick[,] cause children to be hospitalized [and] in some situations, the complications from infection can lead to death." Id. As with adults, having one or more of the already mentioned underlying medical conditions place children at increased...