G.S. v. Lee

558 F.Supp.3d 601

G.S., BY AND THROUGH his parents and next friends, Brittany and Ryan SCHWAIGERT; S.T., by and through her mother and next friend, Emily Tremel; and on behalf of those similarly situated, Plaintiffs,

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

No. 21-cv-02552-SHL-atc

United States District Court, W.D. Tennessee, Western Division.

Signed September 3, 2021

Brice Moffatt Timmons, Craig A. Edgington, Robert A. Donati, Bryce William Ashby, Donati Law Firm, LLP, Memphis, TN, Jessica Farris Salonus, The Salonus Firm, Jackson, TN, for Plaintiffs.

James R. Newsom, III, Matthew Reed Dowty, Robert W. Wilson, Tennessee Attorney General's Office, Memphis, TN, for Defendant Governor Bill Lee.

Tannera George Gibson, Charles Silvestri Higgins, Nathan A. Bicks, Sarah Elizabeth Stuart, Burch Porter & Johnson, Emmett Lee Whitwell, Marlinee C. Iverson, Shelby County Attorney's Office, Memphis, TN, for Defendant Tennessee Shelby County.

ORDER GRANTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

SHERYL H. LIPMAN, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiffs’ Complaint for Declaratory and Injunctive Relief for Violations of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, (ECF No.1), and Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction ("TRO Motion"), (ECF No. 2), both filed on Friday, August 27, 2021. Along with this TRO Motion, Plaintiffs filed a Motion to Certify Class by All Plaintiffs. (ECF No. 16.) On August 30, both Defendant Shelby County ("the County") and Defendant Governor Bill Lee ("Governor Lee" or "Defendant"¹ ) filed Responses to Plaintiffs’ TRO Motion. (ECF Nos. 23 & 24.) The Court also held a hearing on August 30, 2021 on Plaintiffs’ TRO Motion, and set a hearing on the Motion for Preliminary Injunction on September 9, 2021. (ECF 26.) Following the hearing on the TRO Motion but later that same day, Plaintiffs filed a Reply to Defendant Lee's Response. (ECF No. 29.) On August 31, 2021, Defendant Shelby County filed a Supplemental Response to Defendant Lee's Response, and Defendant Lee filed a Sur-Reply in opposition to Plaintiffs’ TRO Motion. (ECF Nos. 30 & 31.)

In their TRO Motion, Plaintiffs seek urgent relief preventing the enforcement of Governor Lee's Executive Order No. 84 ("Executive Order"), which provides parents or guardians of children in Tennessee the right to opt out of wearing masks in schools, even if the school, school system, local health department or other governmental entity otherwise requires that masks be worn. (ECF No. 2.) Specifically, Plaintiffs allege that, because the Executive Order prohibits enforcement of the Shelby County Health Department's mask mandate in schools in the County and thus denies children with disabilities their rights under the American with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("Section 504") to access reasonable protection from the threat of exposure to COVID-19, only immediate restraint of Governor Lee's Executive Order will eliminate this violation of their rights.

At this stage, Defendant Lee argues that Plaintiffs have not properly exhausted their administrative remedies under the IDEA, have no standing to bring these claims, and improperly raise a disparate impact claim against the State under the Rehabilitation Act and ADA. Defendant also contends that sovereign immunity for violations of the ADA is not abrogated here because, he argues, Plaintiffs have not been excluded from a public service or program. However, the Court concludes that the IDEA exhaustion requirements do not apply here, Plaintiffs have standing, and their claims are not based on a disparate impact theory. Moreover, Plaintiffs offered sufficient evidence at this stage for the Court to conclude that the Executive Order's opt-out provision interferes with Plaintiffs’ ability to access services at their public schools through a reasonable accommodation – required mask coverings – as required by the Shelby County Health Department's Health Directives. Accordingly, Plaintiffs’ Motion for a Temporary Restraining Order is GRANTED .

BACKGROUND

I. COVID-19 in Tennessee

Since March 2020, the world has battled the spread of a deadly pandemic caused by the novel coronavirus known as COVID-19. While the contagion of the disease and breadth of its destruction has fluctuated over the past eighteen months, one thing remains constant: contracting this virus can cause serious illness, including death, at rates this country—and the world—have not seen from any other contagious disease in the last 100 years. (See ECF No. 2-1 at PageID 36.) The Centers for Disease Control and Prevention (CDC) has listed factors that identify certain people at higher risk of severe illness or death from COVID-19, including factors that impact children. (Id.) The CDC's research "suggests 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 [and] [s]imilar to adults, children 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." (ECF No. 2-1 at PageID 33, n.2.) COVID-19 has also caused business and school closures across the United States, and decreased the performance of students who had to undertake virtual schooling as a result of measures put in place to protect them from exposure to COVID-19.²

Despite the introduction of vaccines, COVID-19 continues to spread. Since June 2021, the State of Tennessee has seen a dramatic increase of COVID-19 cases, particularly among the unvaccinated, driven by the spread of a highly contagious variant of the virus, the Delta variant. (ECF No. 1 at PageID 2.) As of August 18, 2021, Shelby County has had the "highest positive rate since the inception of the pandemic" – 21.5%. (Id.)

As of mid-August, Shelby County had over fourteen hundred school-aged children diagnosed with COVID-19. (ECF 1 at PageID 2-3.) The children in Shelby County, Tennessee are "uniquely vulnerable" to the risk of COVID-19 due to a variety of factors, starting with the fact that children under the age of 12 generally cannot be vaccinated. (ECF No. 1 at PageID 2; ECF No. 2-1 at PageID 42.) Further, children in Shelby County are more likely to have many of the risk factors, including obesity, diabetes, hypertension, poor diet, asthma, and immunosuppressed systems, associated with more negative consequences from a COVID-19 diagnosis. (ECF No. 1 at PageID 2-3, citing Jeni Diprizio, "Shelby County has highest level of COVID-19 related child inflammatory disease in the state," ABC Local 24, available at https://www.localmemphis.com/article/news/health/coronavirus/shelby-county-highest-level-covid-19-related-child-inflammatory-disease-in-state/522-feabbb3d-3214-426c-ad02-45cf66867a6b.)

II. Mitigation Strategies in Light of COVID-19

The CDC, World Health Organization, and other public health experts conclude that "the only way to limit illness and death from COVID-19 until a larger proportion of the population has been vaccinated is through a combination of measures, including: individual behaviors such as wearing masks, maintaining physical distance from others, washing hands and completely avoiding contact with others when ill; widespread testing with isolation of cases and quarantine of close contacts; and community social distancing measures." (ECF No. 2-1 at PageID 36-37 (emphasis added).) Masks – whether surgical, cloth, synthetic, or something in between – have been found to be extremely effective in mitigating the spread of the COVID-19 virus. Indeed, one of Plaintiffs’ experts (Dr. Sara Cross) states that the "use of masks is associated with a large reduction in risk of infection (17% risk of infection in unmasked individuals versus 3% risk of infection in masked individuals) ... [and that] [u]niversal masking has been shown to reduce transmission of COVID-19 by 79% when individuals are in close contact indoors with an infected individual." (Id. at PageID 37.)

Public health and educational policy-makers in Tennessee have noted that masks remain a critical safeguard for children against COVID-19 exposure. On August 6, 2021, the Shelby County Health Department issued Amended Health Order No. 24, requiring "all K-12, Pre-K schools, and Daycare facilities to require universal indoor masking for all teachers, staff, students, and visitors to the schools, regardless of vaccination status." (ECF No. 1 at PageID 4.) That same day, Governor Lee issued Executive Order No. 83 declaring a continuing state of emergency due to COVID-19 and, among other things, the authorization of more health care providers to bring their services to Tennessee. (Id. at PageID 4-5.) Governor Lee himself stated on August 25, 2021 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." (ECF 2-1 at PageID 33.)

III. Plaintiffs’ Lawsuit

Plaintiff G.S. is a thirteen-year-old boy attending West Middle School, a public school within Shelby County. (ECF No. 1 at PageID 7.) G.S., identified as a student with a disability, must take a daily regimen of chemotherapy to control the consequences of his genetic disorder, and this medicine compromises his immune system. (Id.) Despite being vaccinated, he is therefore at a heightened risk of severe injury or death if he contracts COVID-19, and cannot wear a mask due to his disability. (Id. at PageID 13.) S.T. is an eleven-year-old girl attending Houston Middle School, another public school in Shelby County. (Id.) S.T. suffers from a chromosomal abnormality that causes episodic ataxia, which can be triggered by increased body temperature, such as what occurs when someone has a fever. (Id. at PageID 8.) Both students...