The Assistant Governor of Tennessee warns that the new COVID law is illegal
Nashville, Tenn. — Tennessee Governor Bill Lee’s office has warned lawmakers that a sprawling bill limiting COVID-19 restrictions violates federal law protecting people with disabilities and puts the state at risk of losing federal funds, according to records obtained by The Associated Press.
The Republican-controlled legislature ignored the advice and passed the bill anyway. Less than two weeks later, the Republican governor signed the law.
Lee, who will be re-elected next year, has since said there are still “some issues that we need to resolve.” He has publicly mentioned concerns about how the law could change the rules for visiting hospitals and what that might mean for the state’s ability to control its workplace regulations in the future. But the governor has not publicly expressed concern about compliance with the Americans with Disabilities Act.
In private, his legislative advisor openly warned lawmakers the night the bill was passed that they were in conflict with federal law. The warning came in an email from Legislative Counsel Liz Alvey at 12:44 a.m. on October 30 to Senate President Randy McNally’s chief of staff, Rick Nicholson and Luke Gustafson in the office of Senate Majority Leader Jack Johnson. The email referred to an earlier effort by the governor’s office to point out the same issue.
“The proposed ADA settlement in the bill is a violation of the ADA and would put us at risk of losing federal funding,” Alvey warned as discussions and additions took place in a series of last-minute changes.
The final bill was approved about an hour later that morning.
It is not clear when or whether she provided that legal advice to the governor, who is receiving more legal guidance from his team before deciding whether to sign the legislation. Lee’s office did not directly address this question in its comments.
Lee’s spokesperson Casey Black responded in an email when I asked the AP why Lee was enacting the legislation, noting the email that warned the attorney would violate federal law. “Overall, the bill is a response to the massive expansion of the federal government.”
The law was challenged almost immediately in federal court, with families of young students with disabilities arguing that their children are at risk of serious harm when schools are not allowed to require masks when people congregate indoors, where the chances of infection are much greater.
US District Judge Waverly D. Crenshaw, who is overseeing the legal battle, has since halted the ban on implementing school mask mandates and issued special instructions to state attorneys to explain how the new law will comply with the ADA.
Crenshaw is scheduled to hear evidence in the case Friday morning. The office of state attorney general Herbert Slattery, representing Lee and his Education Commissioner, is now tasked with defending the way the law accommodates students with disabilities.
Republican legislative leaders, who called the three-day sprint session against COVID-19 mandates after the governor refused to do so, praised the finished product despite the objections of prominent business interests, school leaders and others.
The Senate Speaker’s Office has not expressed any concerns about how the law accommodates people with disabilities, and has played down the legal concerns raised by the governor’s office.
McNally’s spokesman, Adam Kleinheider, said McNally “disagrees with this particular objection and supports the law the governor has signed into law.”
By law, families can request accommodations for their children with disabilities to have a “personal learning environment where other persons can position themselves or locate themselves within six feet (6′) of the person receiving reasonable accommodation for longer than fifteen (15)” Minute wearing a face covering provided by the school.”
“Obviously the legislature was simply ignoring whether or not the law it passed would pass a legal mobilization,” Senate Minority Leader Jeff Yarbrough told the Associated Press. “It is shocking to me that the governor signed this into law knowing full well that large parts of it are illegal.”
When the state enacted the new law, it was already subject to court orders preventing the governor’s policy to repeal school mask mandates. This executive order was overturned when three federal judges decided to block the option to opt out of a parent mask for students in three counties, siding with children with disabilities who sued under the Americans with Disabilities Act. He let me withdraw the order to expire when he signed the new law.
Crenshaw’s ruling against school mask restrictions for the new law has drawn praise from public health advocates, but has drawn strong condemnation from some Republicans, who have called moves to block state laws limiting school mask mandates “judicial overreach.”
“The legislation provides for parents’ choice as to whether or not their children should wear a mask, with special needs accommodating,” Senate Majority Leader Jack Johnson said in a statement about Crenshaw’s ruling.
Tennessee’s new law largely prohibits governments and companies from requiring proof of COVID-19 vaccines, and allows schools and other public entities to request masks only in rare, serious public health cases. Exemptions are also allowed if groups can show that they will lose federal funding by complying with state law, which conflicts with policies implemented by the administration of President Joe Biden.
Public health experts say masks are a key virus prevention tool that is most effective when worn by a large number of people. The CDC again recommended closed public places including schools, saying that they do not pose health risks to children older than children.
Prior to Lee’s appointment of Alfie as his legal counsel, since 1999 she worked with the Tennessee Senate, where she was the senior policy advisor to the former majority leader and held leadership positions in the Southern Legislature and the State Council.
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