S.B. by and through M.B. v. Lee

• Decision Date: 12 October 2021
• Docket Number: 3:21-CV-00317-JRG-DCP
• Citation: 566 F.Supp.3d 835
• Parties: S.B., a minor student, BY AND THROUGH his parents, M.B. and L.H. et al., Plaintiffs, v. Governor Bill LEE, in his official capacity as Governor of Tennessee, and Knox County Board of Education, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

566 F.Supp.3d 835

S.B., a minor student, BY AND THROUGH his parents, M.B. and L.H. et al., Plaintiffs,

v.Governor Bill LEE, in his official capacity as Governor of Tennessee, and Knox County Board of Education, Defendants.

No. 3:21-CV-00317-JRG-DCP

United States District Court, E.D. Tennessee, Northern Division, at Knoxville.

Filed October 12, 2021

Jessica F. Salonus, The Salonus Firm, PLC, Jackson, TN, Justin S. Gilbert, Gilbert McWherter Scott & Bobbitt, Chattanooga, TN, for Plaintiffs.

Colleen Mallea, Reed Neal Smith, Office of the Attorney General and Reporter, Nashville, TN, Martha H. McCampbell, Office of Knox County Law Director, Knoxville, TN, for Defendant Governor Bill Lee.

Amanda Lynn Morse, David M. Sanders, Office of Knox County Law Director, Knoxville, TN, for Defendant Knox County Board of Education.

AMENDED MEMORANDUM OPINION AND ORDER

J. RONNIE GREER, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiffs’ Motion in Support of Preliminary Injunction [Doc. 9], Plaintiffs’ Memorandum in Support of Motion for Preliminary Injunction [Doc. 9-1], Defendant Knox County Board of Education's Response in Opposition [Doc. 14], Defendant Governor Bill Lee's Response in Opposition [Doc. 17], Plaintiffs’ Supplemental Authority in Support of Motion for Preliminary Injunction [Doc. 27], Knox County Board of Education's Memorandum Regarding Supplemental Authority [Doc. 28], and Governor Lee's Response to Plaintiffs’ Supplemental Authority [Doc. 31]. For the reasons herein, the Court will grant Plaintiffs’ motion.

I. BACKGROUND

On August 16, 2021, the Governor of Tennessee, Bill Lee, issued Executive Order No. 84, which states:

I, Bill Lee, Governor of the State of Tennessee, having declared a continuing state of emergency by Executive Order No. 83, dated August 6, 2021, and by virtue of the power and authority vested in me by the Tennessee Constitution and other applicable law including Tennessee Code Annotated § 58-2-107, do hereby order 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.

[Executive Order No. 84, Doc. 23]. Not long afterwards, the Knox County Board of Education, in response to the ongoing COVID-19 pandemic, met on September 1, 2021, to discuss and vote on a district-wide mask mandate for its school system, [Am. Compl., Doc. 7, ¶ 52],¹ which consists of ninety schools and 60,000 students, [Hr'g Tr. at 179:24–25, 180:1–6 (on file with the Court)].² Approximately 8,000 of those students are disabled. [Id. at 180:7–14]. By vote of the board, a mask mandate had been in effect during the entirety of the previous school year, from August 2020 to May 2021, for all ninety schools. [Id. at 206:15–25]. But this year, during the board's meeting on September 1, 2021, it decided not to renew the mask mandate by a vote of 5 to 4, [Am. Compl. ¶ 54]—acting at odds with the guidelines of the Knox County Health Department, the American Academy of Pediatrics, and the Centers for Disease Control and Prevention ("CDC"), all of which recommend masks for all students enrolled in kindergarten through twelfth grade, [Dr. Yaun Decl., Doc. 9-3, ¶ 12; Hr'g Tr. at 55:21–25, 56:1, 69:5–7].³

In response to the board's vote, Plaintiffs, on the following day, brought a class-action lawsuit in this Court under Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131 et seq. , and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, claiming they are "unable to safely attend school without increased risks of serious injury or even death, unlike their non-disabled peers." [Am. Compl. ¶ 54 (emphasis in original)]. Plaintiffs allege that they suffer from underlying medical conditions that expose them to a likelihood of severe illness or death from COVID-19, a highly transmissible and sometimes deadly virus that invades the body through the mouth, nose, and eyes and spreads through respiratory droplets that persons produce by speaking, coughing, or sneezing. [Hr'g Tr. at 51:2–25, 52:1–6, 103:8–9]. Children under the age of twelve are not yet eligible to receive COVID-19 vaccines, and some children who are old enough to receive the vaccines may have medical conditions that do not allow their immune systems to sufficiently respond to them. [Dr. Yaun Decl. ¶¶ 21–22].

A ten-year-old fourth grader, Plaintiff T.W. has only one heart ventricle, a congenital defect that impairs his cardiovascular and immune functions, and he also suffers from epilepsy

. [Am. Compl. ¶¶ 25–26]. He has undergone multiple open-heart surgeries. [Id. ¶¶ 25–26]. A twelve-year-old sixth grader, Plaintiff M.S. suffers from "Joubert Syndrome, a rare genetic disorder involving brain malformation" that results in cognitive impairments. [Id. ¶¶ 22–24]. She is confined to a wheelchair. [Id. ¶ 24].⁴ An eight-year-old second grader, Plaintiff S.B. suffers from chronic lung disease, Eosinophilic Esophagitis (a chronic immune-system disease of the esophagus), autoimmune disease, and autism. [Id. ¶¶ 19–21]. An eleven-year-old sixth grader, Plaintiff M.K. has asthma and is on the Knox County School System's "Asthma Action Plan," an emergency plan. [Id. ¶¶ 27–28]. All Plaintiffs are zoned within the public school system of the Knox County Schools. [Id. ¶¶ 3, 6, 9, 12].

Plaintiffs claim that the Knox County Board of Education has violated the ADA and the Rehabilitation Act by not providing them with a reasonable accommodation that would enable them—against the backdrop of the COVID-19 pandemic—to have safe and "fundamental access to the school building itself." [Id. ¶ 55 (emphasis in original)]. Specifically, Plaintiffs cite an "urgent need" for a mask mandate inside Knox County Schools and allege the reasonable accommodation "being sought in this case is community masking: protection of selves and others. " [Id. ¶¶ 40, 51 (emphasis in original)]. According to Plaintiffs, the Knox County Board of Education's rejection of a mask mandate is placing them at an "increased risk of serious injury or death by not allowing a simple reasonable modification under the ADA and Rehabilitation Act." [Id. ¶ 60]. Also, Plaintiffs claim that Governor Lee has violated the ADA and the Rehabilitation Act because, by promulgating Executive Order No. 84, he denied the Knox County Board of Education "the ability to provide the children with disabilities in the instant matter with the protections they need to attend school safely." [Id. ¶ 68].

Plaintiffs bring suit on behalf of all "current and future K-12 students" who are "eligible to attend public school in Knox County, Tennessee, during the coronavirus pandemic," who are unable to receive the vaccine or unable to mount an adequate immune response to the vaccine, and who suffer from one or more of the following medical conditions:

(a) lung disease, including asthma

, chronic obstructive pulmonary disease (e.g. , bronchitis or emphysema ), or other chronic conditions associated with impaired lung function;

(b) heart disease, such as congenital heart disease, congestive heart failure and/or coronary artery disease ;

(c) chronic liver or kidney disease (including hepatitis and dialysis patients);

(d) diabetes or other endocrine disorders ;

(e) hypertension ;

(f) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease );

(g) blood disorders (including sickle cell disease );

(h) inherited metabolic disorders ;

(i) history of stroke;

(j) neurological or developmental disability (including epilepsy );

(k) cancer or cancer treatments; and/or

(l) muscular dystrophy or spinal cord injury.

[Id. ¶ 58; see Dr. Yaun Decl. ¶ 18 (stating that children with these medical conditions are "more likely to face severe symptoms, require hospitalization, and potentially die" from COVID-19)].

Plaintiffs now move the Court to issue a preliminary injunction⁵ that "requir[es] Knox County Board of Education to enforce a mask mandate" and that "enjoin[s] Governor Lee during this litigation from enforcing Executive Order No. 84." [Am. Compl. ¶ 77].⁶ Last month, the Court held a hearing on Plaintiffs’ motion for a preliminary injunction. The Court heard from several witnesses during the hearing, including Ms. Ashley Paquette, Jason Yaun, M.D., Jennifer Ker, M.D., Jon Rysewik, Ph.D., and Mr. Jason Myers.

Ms. Paquette is a fifth-grade teacher in the Knox County School System and teaches at Farragut Intermediate School. A licensed, board-certified pediatrician, Dr. Yaun is an associate professor of pediatrics at the University of Tennessee Health Sciences Center and practices medicine with the University of Tennessee Le Bonheur Pediatric Specialists in Memphis, where he treats children who are infected with COVID-19. [Hr'g Tr. at 48:5–11, 49:14–16]. A licensed, board-certified immunologist, Dr. Ker is an assistant clinical professor of allergy, pulmonary, and critical-care medicine at the Vanderbilt University Medical Center and practices medicine in Nashville and Brentwood. [Hr'g Witness List, Doc. 25, at 2]. She also treats children who are infected with COVID-19 and who, in some instances, have immune systems that function poorly. [Hr'g Tr. at 97:13–24, 98:20–22]. Ms. Paquette, Dr. Yaun, and Dr. Ker testified on Plaintiffs’ behalf. Dr. Rysewik and Mr. Myers appeared on the Knox County Board of Education's behalf. Dr. Rysewik is the chief academic officer and assistant superintendent for Knox County Schools, and Mr. Myers is the executive director of student support for Knox County Schools. [Id. at 178:21–22, 217:18–19].

The parties have now fully briefed the Court on their respective arguments for and against the entry of a preliminary injunction. Having carefully reviewed and ...