R.K. v. LeeR.K. v. Lee
Case Information
*1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION
R.K. et al., )
)
Plaintiffs, )
)
v. ) No. 3:21-cv-00725
)
GOVERNOR BILL LEE, in his official )
capacity as GOVERNOR OF )
TENNESSEE et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
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”),
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 *2 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.). I. PRELIMINARY FACTUAL FINDINGS
A. Executive Order No. 84 and the Plaintiffs’ Lawsuit
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 *3 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.).
B. The State of COVID-19 Amongst Children in Tennessee 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’ expert [1] 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 *5 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.
C. Mitigation Efforts by Schools to Curb the Spread of COVID-19 The CDC has found that masks are effective in reducing the spread of COVID-19. (See Doc. No. 4-6 ¶ 25 (citing D.K. Chu et al., Physical distancing, face masks, and eye protection to prevent person-to-person transmission of SARS-CoV-2 and COVID-19: A systematic review and meta-analysis. 395 T HE L ANCET 1973–87 (2020)); see also CDC, Science Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2 (May 7, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-sars- cov2.html. Health experts and school officials in Tennessee agree that masks are effective. (See Doc. No. 4-5 ¶¶ 12–17; see also Doc. No. 4-6 ¶¶ 25, 28). Indeed, even Governor Lee has admitted that “[i]f you want to protect your kid from the [COVID-19] virus or from quarantine, the best way to do that is to have your kid in school with a mask.” Kimberlee Kruesi, Health chief: Children now 36% of Tennessee’s virus cases, AP NEWS (Aug. 25, 2021), https://apnews.com/article/health-coronavirus-pandemic-tennessee- 32b7ff0dc540a2b11cc8c736c67020fe#:~:text=Mark%20Humphrey%2C%20File)- ,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 were reaching a “crisis point” due to the rapid spread of new COVID-19 cases, both the Williamson County and Franklin school systems implemented temporary universal mask mandates for all students, staff, and visitors, except for those who have a medical condition or sincerely held religious belief. (See Doc. Nos. 1-1, 23, 24, 26, 27). Franklin based its mandate on several objective, science-based, and “important factors,” including: (1) the quadrupling of new COVID cases in Franklin students and staff between Week 1 and Week 2; (2) that children 11 and younger remain ineligible for a COVID-19 vaccine; (3) according to the CDC, Williamson County has been in the “high range for community transmission since July 22,”; and (4) the Delta variant “spreads more easily than previous variants, and can be spread by vaccinated individuals.” See Franklin Special School District, Messages from the Director (August 20, 2021), https://www.fssd.org/about-us/fssd-together-2021#fs-panel-13348.
On September 20, 2021, recognizing the continued threat of COVID-19 and the Delta variant, each school system extended their respective temporary universal mask mandates until at least mid-January 2022. (Doc. Nos. 23, 24, 26, 27). In doing so, Williamson County noted that “COVID numbers in the schools had declined since the mandate was implemented, and a majority of the elected Board determined that continuation of the mandate through the end of the semester would be the best approach and would limit disruption to school operations.” (Doc. No. 23 at 1– 2). Similarly, Franklin noted that “[u]niversal masking, in conjunction with other mitigation strategies, remains the best way to ensure a safe learning environment for all children.” (Doc. No. 26 at 2).
Following Governor Lee’s Executive Order, both Williamson County and Franklin amended their temporary universal mask policies to allow for voluntary parental opt-out for any reason. (Doc. Nos. 23, 24, 26, 27). As many as 13,231 children—nearly 32% of the student body— *7 have opted out of Williamson County’s amended masking policy. (See Doc. No. 1 ¶ 41). Approximately 200 Franklin students, or 10% of the student body, have similarly opted out. [2]
II. LEGAL STANDARD
Plaintiffs now seek immediate injunctive relief under
“The purpose of [injunctive relief] under
In determining whether to issue immediate injunctive relief under
III. ANALYSIS
Having carefully considered the entire record, especially affidavits and declarations, the Court concludes that immediate injunctive relief should issue. The Court will discuss each factor in turn.
A. Likelihood of Success on the Merits
Plaintiffs argue that Executive Order No. 84 and the school system’s temporary universal amended mask policies “have nullified the rights of students with disabilities to enjoy safe, fundamental, and non-discriminatory access to their public institutions.” (Doc. No. 4-1 at 3). As a result, Plaintiffs argue that they are likely to succeed on the merits because: (1) under the ADA and Section 504, they are qualified individuals with disabilities who are entitled to reasonable accommodations and protections from unlawful discrimination; and (2) Executive Order No. 84 *9 denies them their right and opportunity to participate in the educational services of their public- school districts guaranteed under the ADA and Section 504. (Id. at 10–11). Governor Lee counters that Plaintiffs: (1) cannot satisfy the legal standard for immediate injunctive relief; (2) are barred by the doctrine of laches; and (3) failed to exhaust their administrative remedies under the Individuals with Disabilities Education Act. (See Doc. No. 16).
1. The ADA and Section 504
The U.S. Constitution enshrines the principle that federal law is “the supreme Law of the
Land.”
Under Title II of the ADA, “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
Plaintiffs first raise a failure to accommodate claim under the ADA. (Doc. No. 4-1 at 11).
To establish a failure to accommodate claim, Plaintiffs must show that: “(1) [they are] disabled;
(2) [they were] ‘qualified’ to take part in the ‘services, programs, or activities’ of the public entity;
(3) [they were] ‘excluded from participation in’ or ‘denied the benefits of’ such ‘services,
programs, or activities’; and (4) this exclusion or denial occurred ‘by reason of’ [their] disability.”
Keller v. Chippewa Cty., Michigan Bd. of Commissioners, No. 20-2086, __ F. App’x __, __, 2021
WL 2411873, at *4 (6th Cir. June 14, 2021) (citing
Governor Lee does not directly address the first two elements of a failure to accommodate
claim. Nonetheless, the Court finds that Plaintiffs have sufficiently shown at this stage that they
satisfy these elements. First, Plaintiffs are disabled under the meaning of the ADA. See
The crux of whether Plaintiffs are likely to succeed on the merits depends on whether they
can establish the third and fourth elements of a failure to accommodate claim: that they were
excluded from the programs, services, and activities of their schools by reason of their disability.
*11
See Keller, 2021 WL 2411873, at *4. Governor Lee argues that Plaintiffs have neither been
discriminated against nor excluded from the programs, services, and activities of their respective
schools because they do not “seek to impose a mask mandate on their particular classrooms or
schools, nor do [they] utilize virtual education options.” (Doc. No. 16 at 12). But the Court
disagrees. ADA implementing regulations require that “[a] public entity shall operate each service,
program, or activity so that the service, program, or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities.”
Here, Plaintiffs have alleged that in-person learning is neither safe nor readily accessible
to them by reason of Executive Order No. 84. (See Doc. No. 4-1 at 10–11; see also Doc. Nos. 1-
*12
1, 4-3, 4-4, 4-5, 4-6). So, Plaintiffs argue that Governor Lee’s order discriminates against them by
reason of their disability, forcing them to face a prevalent threat of infection every time they access
public educational programs and services. (Doc. No. 4-1 at 11–12; see also Doc. Nos. 1-1, 4-5, 4-
6). As a result, Plaintiffs correctly claim that Williamson County’s and Franklin’s educational
services, programs, and activities, “when viewed in [their] entirety, [are not] readily accessible to
and usable by individuals with disabilities.”
The Governor also argues that Plaintiffs cannot establish a failure to accommodate claim
because the remedy Plaintiffs request—universal mask mandates for students—is not a reasonable
accommodation, “is overly broad,” requires significant resources to implement, and is inconsistent
with the individualized approach required under the ADA. (Doc. No. 16 at 12). But these
arguments are also unpersuasive, as federal courts have recently found that “[a] universal masking
requirement instituted by a school is a reasonable modification that would enable disabled students
to have equal access to the necessary in-person school programs, services, and activities.” ARC of
Iowa,
2. Laches
The Governor also argues that the doctrine of laches bars Plaintiffs from relief. (Doc. No.
16 at 16). Laches is “principally a question of the inequity of permitting [a] claim to be enforced.”
Kehoe v. Component Sales Inc. v. Best Lighting Prods.,
Here, the Governor argues that Plaintiffs “unreasonably delayed in seeking” injunctive
relief because they filed their complaint more than a month after Executive Order No. 84 was
issued. (Doc. No. 16 at 5). But that argument is unavailing. On the record before the Court at this
stage of the proceedings, there is no evidence that Plaintiffs acted “unreasonably” or with a “lack
of diligence.” Kehoe,
3. Exhaustion
Governor Lee also argues that Plaintiffs have failed to exhaust their administrative
remedies required under the Individuals with Disabilities Education Act (“IDEA”),
But the Court need not spill significant ink in addressing this argument because if “the
remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA’s procedures is not
required.” Id. (citing Fry,
B. Irreparable Harm
Plaintiffs next argue that they would be subject to irreparable harm should Executive Order
No. 84 remain in place because they would be subject to increased exposure to severe illness—
and possibly death—merely by accessing educational opportunities in their respective school
buildings. (Doc. No. 4-1 at 12–13). The Governor offers no opposition. In the Western District of
Tennessee challenge to Executive Order No. 84, Judge Lipman found that irreparable harm existed
on a similar record, concluding that because plaintiffs pled that “school has been in session for
more than 3 weeks, a significant number of the student body has already opted-out of the county-
wide mask mandate, and the number of students infected with COVID-19 or exposed, warranting
quarantine continues to rise,” plaintiffs were “denied the benefits of an in-person public
education.” G.S.,
Based on the record before the Court, due to the rise in COVID-19 cases in Williamson County, including at Plaintiffs’ schools, along with a significant number of students who have opted out, Plaintiffs have likewise been denied access to a safe, in-person education experience. (See Doc. No. 1 ¶¶ 56–78; see also Doc. No. 4-1 at 12–13). R.K.’s mother declared that “[w]ith the rise in COVID-19 infections in Williamson County,” she is “concerned about [R.K.’s] safety unless proper mitigating efforts were made to reduce the risk of her infection with COVID-19.” (Doc. No. 4-3 ¶ 9). Similarly, W.S.’s mother remains “concerned that [W.S.] may be reinfected if [the Franklin school system] does not universally require masks for all students and teachers.” (Doc. No. 4-4 ¶ 10). And Dr. Cross lamented that “the failure to implement a universal masking policy in schools will likely lead to extremely high rates of transmission of COVID-19.” (Doc. *16 No. 4-5 ¶ 20). That disabled students are at a significantly higher risk for severe infection and are exposed at a higher rate following Executive Order No. 84 is itself an irreparable harm that justifies injunctive relief. (See Doc. No. 4-6 ¶¶ 13, 19). Accordingly, the Court finds that Plaintiffs face irreparable harm to justify immediate injunctive relief, and that this factor weighs in their favor.
C. Harm to Others and the Public Interest
When the government opposes injunctive relief, the third and fourth elements merge. See
Nken v. Holder,
The Court therefore agrees with Plaintiffs. “The government’s interest is the public
interest.” Pursuing America’s Greatness v. Fed. Election Comm’n,
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for immediate injunctive relief (Doc. No. 4 )
is GRANTED . Accordingly, the Court orders that:
1. Defendant Governor Lee is ENJOINED from enforcing Executive Order No. 84 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 on a purely voluntary basis;
2. Defendants Williamson County Board of Education and Franklin Special School District are ORDERED to enforce their mask policies without exception for Executive Order No. 84;
3. The Court finds that no bond is required.
4. This injunctive relief shall remain in effect until 11:59 p.m. on Tuesday, October 5, 2021 unless extended by this Court;
5. The Court is entering this Order to prevent further injury, damage, and loss to Plaintiffs. IT IS SO ORDERED.
____________________________________ WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Notes
[1] Plaintiffs provide two declarations by medical doctors, Dr. Sarah Williams and Dr. Sara
Cross (See Doc. Nos. 4-5, 4-6). Both Dr. Williams and Dr. Cross appear to satisfy the expert
witness standards under
[2] Although Franklin has not published its opt-out rates, the school’s counsel confirmed this figure on the record in open court on September 20, 2021. (See Doc. No. 18).