M.B. v. Lee (JRG1)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

S.B., a minor student, by and through his parents, )

M.B. and L.H. et al., )

)

Plaintiffs, )

)

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

)

GOVERNOR BILL LEE, in his official capacity )

as Governor of Tennessee, and KNOX COUNTY )

BOARD OF EDUCATION, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Knox County Board of Education’s

Amended and Restated Motion to Alter or Amend Judgment [Doc. 40], Plaintiffs’ Response in

Opposition [Doc. 42], and the Knox County Board of Education’s Reply [Doc. 44]. For the

reasons herein, the Court will deny the remainder of the Knox County Board of Education’s

motion.1

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.

1 Last week, the Court granted the motion in part and reserved ruling on the remainder of the motion. See

[Mem. Op. & Order, Doc. 47].

[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],2 which

consists of ninety schools and 60,000 students, [Hr’g Tr. at 179:24–25, 180:1–6 (on file with the

Court)].3 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].4

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

2 Plaintiffs’ amended complaint is verified under 28 U.S.C. § 1746, see El Bey v. Roop, 530 F.3d 407, 414

(6th Cir. 2008) (noting that a “verified complaint” is one that is signed under the penalty of perjury under 28 U.S.C.

§ 1746), and the Court may therefore rely on it as evidence, see Barron v. PGA Tour, Inc., 670 F. Supp. 2d 674, 677

n.3 (W.D. Tenn. 2009) (stating that “the court may rely on facts contained in affidavits and verified complaints in

deciding whether to issue a temporary restraining order or preliminary injunction” (citing Fed. R. Civ. P. 65(b)(1)(A))).

3 The Court has relied on an uncertified copy of the transcript, which it received from the court reporter

immediately after the evidentiary hearing. It does not exactly match the line numbers and page numbers in the certified

copy of the transcript that was recently filed in the record. The two copies are otherwise consistent with each other.

4 On August 11, 2021, the Knox County Board of Health recommended masking indoors regardless of

vaccination status. [Hr’g Tr. at 69:5–7].

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].5 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

5 The parties have stipulated that M.S. has now been vaccinated. [Id. at 121:8–25, 122:1–25].

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 also moved the Court to issue a preliminary injunction6 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].7 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].

6 In a class-action lawsuit, the Court has license to issue a class-wide preliminary injunction before ruling on

class certification. See Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012) (“[T]here is nothing

improper about a preliminary injunction preceding a ruling on class certification.”).

7 Plaintiffs’ amended complaint is misnumbered between pages sixteen and eighteen.

The Court ultimately granted Plaintiffs’ motion for a preliminary injunction and ordered

the Knox County Board of Education to enforce—with immediate effect—the mask mandate that

was in place in all Knox County Schools during the 2020-2021 school year, as a reasonable

accommodation under the ADA for Plaintiffs and Class Plaintiffs. [Am. Mem. Op. & Order, Doc.

48, at 56]. The Court, however, granted the Knox County Board of Education leave to approve

exemptions to the mask mandate under Policy C-240 [Doc. 36-2], which it created and put into

effect during the 2020-2021 school year. The Knox County Board of Education has now filed a

motion to alter or amend the Court’s judgment under Federal Rule of Civil Procedure 59(e). It

maintains that relief under Rule 59(e) is appropriate because (1) newly discovered evidence

establishes that the mask mandate is placing an undue burden on it and (2) the mask mandate

constitutes a clear error of law. Having now carefully considered the Knox County Board of

Education’s arguments and Plaintiffs’ response to those arguments, the Court is prepared to rule

on the Rule 59(e) motion.

II. LEGAL STANDARD

Rule 59(e) states that a party may file a motion to alter or amend judgment within twenty-

eight days from the entry of judgment. See Fed. R. Civ. P. 59(e). Rule 59(e) permits the Court to

alter or amend a judgment based on “(1) a clear error in law; (2) newly discovered evidence; (3)

an intervening change in controlling law; or (4) a need to prevent manifest injustice.” Leisure

Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010) (quotation omitted).

The Court has “considerable discretion” in deciding whether to grant a Rule 59(e) motion. Id.

(citation omitted). A Rule 59(e) motion, however, “run[s] contrary” to notions of “finality and

repose,” and it is therefore “generally discouraged” and “afford[s] relief only under extraordinary

circumstances.” Polzin v. Barna & Co., No. 3:07-cv-127, 2007 WL 4365760, at *3 (E.D. Tenn.

Dec. 11, 2007).

III. ANALYSIS

The Court’s order granting a preliminary injunction against the Knox County Board of

Education is a judgment for purposes of Rule 59(e). Malam v. Adducci, 481 F. Supp. 3d 631, 636

(E.D. Mich. 2020); see Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 414 n.2 (6th Cir.

2012); Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 232 (6th Cir. 2011). The motion is

therefore properly before the Court.

A. Undue Burden

The Knox County Board of Education states that it has new evidence establishing that

the Court’s mask mandate is causing it to suffer an undue burden. See generally 28 C.F.R.

§ 35.130(b)(7)(i) (stating that “[a] public entity shall make reasonable modifications in policies,

practices, or procedures when the modifications are necessary to avoid discrimination on the

basis of disability, unless the public entity can demonstrate that making the modifications would

fundamentally alter the nature of the service, program, or activity”). It believes it is suffering an

undue burden because 700 students and 16 staff members have refused to wear masks since the

Court’s mask mandate went into effect. [Knox Cty. Bd. of Educ.’s Mot. at 7]. Of the 16 staff

members, 10 of them are teachers and “were sent home without pay.” [Id.]. The Knox County

Board of Education asserts that the Court’s mask mandate has therefore “negatively impacted

the educational rights of [some] students” and that “parental and student resistance . . . will

continue.” [Id. at 8].

The Knox County Board of Education, however, cites no legal grounds—statutes,

regulations, or case law—by which the Court can determine, under the facts it now describes

to the Court, that the mask mandate is causing it to endure an undue administrative burden.

See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed

waived. It is not sufficient for a party to mention a possible argument in the most skeletal way,

leaving the court to . . . put flesh on its bones.” (alteration in original) (quotation omitted))). The

Knox County Board of Education’s failure to cite legal authority is fatal to its motion because it

is not without grist to develop its cadaverous argument. Id. Although not precisely on point, Title

I’s implementing regulations contain an instructive definition of the term “undue hardship,”8 as

it applies to the provision of a reasonable accommodation:

(1) In general. Undue hardship means, with respect to the provision of an

accommodation, significant difficulty or expense incurred by a covered entity,

when considered in light of the factors set forth in paragraph (p)(2) of this section.

(2) Factors to be considered. In determining whether an accommodation would

impose an undue hardship on a covered entity, factors to be considered include:

(i) The nature and net cost of the accommodation needed under this part, taking into

consideration the availability of tax credits and deductions, and/or outside funding;

(ii) The overall financial resources of the facility or facilities involved in the

provision of the reasonable accommodation, the number of persons employed at

such facility, and the effect on expenses and resources;

(iii) The overall financial resources of the covered entity, the overall size of the

business of the covered entity with respect to the number of its employees, and the

number, type and location of its facilities;

(iv) The type of operation or operations of the covered entity, including the

composition, structure and functions of the workforce of such entity, and the

geographic separateness and administrative or fiscal relationship of the facility or

facilities in question to the covered entity; and

8 The ADA is comprised of a “tripartite structure.” Marble v. Tennessee, 767 F. App’x 647, 650 (6th Cir.

2019). Title I protects disabled individuals from discrimination in the workplace; Title II protects their access to public

services; and Title III protects their access to public accommodations. Id. (citing 42 U.S.C. §§ 12112, 12132, 12182).

Plaintiffs are suing Defendants under Title II, [Am. Compl. at 1–2], but the Sixth Circuit has relied on legal principles

under Title I as guidance for determining the outcome of cases under Title II. See McPherson v. Mich. High Sch.

Athletic Ass’n, 119 F.3d 453, 460 (6th Cir. 1997) (“Not surprisingly, most of the law that has been made in ADA cases

has arisen in the context of employment discrimination claims, but we have no doubt that the decisional principles of

these cases may be applied to this case [involving Title II].”); Marble, 767 F. App’x at 651 (“We turn to [employment

discrimination cases under Title I] because we have had fewer opportunities to address reasonable-accommodation

claims under Title II.”).

(v) The impact of the accommodation upon the operation of the facility, including

the impact on the ability of other employees to perform their duties and the impact

on the facility’s ability to conduct business.

29 C.F.R. § 1630.2(p)(1)–(2). If the Court were to view the Knox County Board of Education’s

argument through the prism of these provisions, the tenor of its argument would then appear to

be that the mask mandate is causing it to suffer a loss of resources, i.e., its staff, and is leaving it

without the ability to perform its duties.

But the circumstances that the Knox County Board of Education has described to the

Court do not appear to be meaningfully different from the circumstances that it envisioned and

prepared for during last year’s voluntary mask mandate. Mr. Myers testified that last year’s

voluntary mask mandate was a hot-button subject among parents and students, and the Knox

County Board of Education had to contend with “argument[s]” about it. [Hr’g Tr. at 222:17–23].

Perhaps anticipating that students, and maybe even teachers, would not comply with its mask

mandate, it voluntarily adopted a policy under which it would send repeat offenders home. [Id.

at 208:6–8]. So, the record establishes that the Knox County Board of Education has already

envisioned and prepared for circumstances under which some students would not remain on

school grounds due to their noncompliance. The evidence, therefore, does not establish that the

Court’s mask mandate is presenting the Knox County Board of Education with a scenario that

was foreign to it under the status quo of last year’s voluntary mask mandate.

In addition, as Plaintiffs point out, only a fraction of students—less than one percent—

are not currently complying with the Court’s mask mandate. [Pls.’ Resp. at 10]. The same is true

for its staff members. Ms. Paquette testified that Farragut Intermediate has between 65 and 70

staff members. [Hr’g Tr. at 37:22–25]. If all 90 schools in Knox County have roughly the same

number of staff members, then the 16 staff members who are not complying with the Court’s

mask mandate equate to less than one percent of staff members overall. While the absence of

these staff members might burden the Knox County Board of Education to a degree, the Court

cannot conclude that it creates an undue burden—particularly in light of the fact that the Knox

County Board of Education already has policies and procedures in place from last year to address

acts of noncompliance. Indeed, the Knox County Board of Education does not claim that the

absence of such a small number of staff members has rendered it unable to carry out its daily

functions. It does not claim that it has had to cancel school. It does not claim that it has even had

to cancel a single class. In sum, it musters no new evidence from which the Court can conclude

that the mask mandate, as a reasonable accommodation for Plaintiffs and Class Plaintiffs, is in

any way causing it to grapple with a burden of undue proportions. See generally H.R. Rep. No.

485, 101st Cong., 2d Sess., pt. II, at 69 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 351 (“[T]he

fact that an accommodation is used by only one [person] should not be used as a negative factor

counting in favor of a finding of undue hardship.”).

B. Clear Error of Law

Next, the Knox County Board of Education maintains that the Court committed a clear

error of law by issuing a preliminary injunction, but it acknowledges, and rightfully so, that it

has “a very high bar to meet” in establishing a clear error of law. [Knox Cty. Bd. of Educ.’s Mot.

at 8]. This Court has previously stated that a finding of clear legal error requires the “application

of incorrect law to the facts.” Kelley v. Apria Healthcare, LLC, 232 F. Supp. 3d 983, 997 (E.D.

Tenn. 2017) (citing Kelso v. City of Toledo, 77 F. App’x. 826, 832 (6th Cir. 2003)). Other district

courts in this circuit have stated that a clear error of law requires “unique circumstances,” like a

court’s “complete failure to address an issue or claim.” McBroom v. HR Dir. Franklin Cty. Bd.

of Elections, No. 2:12-CV-1074, 2019 WL 2373749, at *1 (S.D. Ohio June 5, 2019) (quotation

omitted). The Knox County Board of Education, however, does not contend that the Court

applied incorrect law to the facts or that it failed to address an issue or claim. Instead, it argues

that the Court clearly erred in entering a preliminary injunction because the Knox County Board

of Education “has taken no action to bar or prevent Plaintiffs from accessing [their] buildings.”

[Knox Cty. Bd. of Educ.’s Mot. at 9].

But the Knox County Board of Education too casually describes the issue that was before

the Court. The issue was not access to the schools in general but safe access in light of Plaintiffs’

unique needs. As the Court stated in its memorandum opinion and order, “the Court’s inquiry is

whether the Knox County Board of Education—in light of the heightened lethality that COVID-

19 poses to Plaintiffs because of their disabilities—has made reasonable modifications to its

policies, practices, or procedures so that Plaintiffs can safely access Knox County’s public

schools.” [Am. Mem. Op. & Order at 28]; see [Am. Compl. ¶ 54 (seeking “to safely attend school

without increased risks of serious injury or even death, unlike their non-disabled peers”

(emphasis in original))]. The evidence clearly demonstrated that the accommodations that the

Knox County Board of Education had in place against COVID-19 were not reasonable because

they were ineffective, [Am. Mem. Op. & Order at 29–33], and Rule 59(e) is not an apparatus by

which it can now relitigate the reasonableness of those accommodations, see Sault Ste. Marie

Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (“A motion under Rule

59(e) is not an opportunity to re-argue a case.” (citation omitted)); U.S. ex rel. Am. Textile Mfrs.

Inst., Inc. v. Limited, Inc., 179 F.R.D. 541, 547 n.9 (S.D. Ohio 1998) (“FRCP 59(e) is not a means

by which a party may re-litigate issues previously considered.” (citations omitted)).

When considering ADA claims, federal courts have demonstrated concern over whether

accommodations for the disabled are in fact safe. Cf., e.g., Dickinson v. York, 828 F. App’x 780,

781–82, 783–84 (2d Cir. 2020) (reversing summary judgment against a handicapped prisoner,

who filed suit under the ADA and alleged that the prison’s accommodation of a standard-issue

uniform was unsafe because he could not wear it properly and loose material would get stuck

in his wheelchair); Medina-Rodriguez v. Fernandez Bakery, Inc., 255 F. Supp. 3d 334, 339, 343

(D. P.R. 2017) (declining to dismiss the plaintiff’s ADA claim when the plaintiff alleged that, as

a handicapped individual, he was unable to safely access a building because “barriers [to access]

render[ed] the building unsafe,” exposed him to moving traffic, and “depriv[ed] him ‘of the

meaningful choice of freely visiting the same accommodations readily available to the general

public’”); Polansky v. Wrenn, Civil No. 12–cv–105–PB, 2012 WL 4748097, at *4 (D.N.H. Aug.

31, 2012) (stating that a handicapped inmate had “previously asserted a cognizable claim” under

the ADA because he alleged that the prison’s accommodation of a handicapped shower was

“unsafe” without a safety alarm system).

The Knox County Board of Education, later on in its Rule 59(e) motion, ultimately does

recognize that the issue is not whether Plaintiffs “can[] physically enter [the school] buildings”

but whether “they are at heightened risk due to COVID-19” inside the school buildings. [Knox

Cty. Bd. of Educ.’s Mot. at 10]. While conceding the correct issue, it argues that the ADA does

not require it to “provid[e] a 100% safe environment for its students.” [Id.]. Maybe so, but no

one disputes this point. After all, Plaintiffs are not requesting a virus-free environment in their

schools; rather, they are requesting a mask mandate to “mitigate the[] risk of” COVID-19, [Am.

Compl. ¶ 37], and “mitigat[e] the transmission” of COVID-19, [Pls.’ Mem., Doc. 9-1, at 12].

The ADA may not entitle Plaintiffs to a completely safe environment at school, but it certainly

entitles them and Class Plaintiffs—in light of their unique needs—to an environment in which

infections are not rising at a rate of 600 percent a day among their peers. See Wright v. N.Y. State

Dep’t of Corrs., 831 F.3d 64, 72 (2d Cir. 2016) (“The hallmark of a reasonable accommodation

is effectiveness.” (quotation omitted)); see also U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400

(2002) (“It is the word ‘accommodation,’ not the word ‘reasonable,’ that conveys the need for

effectiveness.”); EEOC v. Ford Motor Co., 752 F.3d 634, 646 (6th Cir. 2014) (stating that an

accommodation must be effective enough to “adequately address” a disabled individual’s “unique

needs”)), vacated en banc on other grounds, 782 F.3d 783 (6th Cir. 2015).

Lastly, the Knox County Board of Education regurgitates its prior argument—one that

the Court previously addressed in detail—that it is already providing Plaintiffs with a reasonable

accommodation in the form of virtual schooling and that a mask mandate is therefore improper.

[Knox Cty. Bd. of Educ.’s Mot. at 9]. According to the Knox County Board of Education, the

Court “decided that Virtual Schools, despite being identical in all respects to . . . physical schools,

were not a reasonable [alternative] accommodation because they do not allow for in person

interaction between staff and students[.]” [Id. at 10]. In claiming that the Court clearly erred in

reaching this decision, the Knox County Board of Education faults it for recognizing that virtual

schooling does not provide Plaintiffs with “face-to-face interaction with peers.” [Id.]. “[T]he

ADA,” the Knox County Board of Education claims, “does not require face-to-face services or

settings.” [Id.].

The Knox County Board of Education mischaracterizes the Court’s ruling. First off, the

Court never found that in-person schooling and virtual schooling are “identical in all respects.”

[Id. at 9]. Rather, the Court stated that “virtual schools mimic their brick-and-mortar schools”

in some ways but “in other ways, virtual schools have obvious differences from their brick-and-

mortar counterparts.” [Am. Mem. Op. & Order at 36]. One of those differences is indeed that

students enrolled in virtual schools are not physically present in the classroom with their teachers

and peers and do not have the opportunity to eat lunch with, go to physical education with, or

engage in extracurricular activities with their peers. [Id.]; see generally Fry v. Napoleon Cmty.

Schs., 137 S. Ct. 743, 756 (2017) (stating that Title II of the ADA “aim[s] to root out disability-

based discrimination” by “enabling each covered person . . . to participate equally to all others

in public facilities” (emphasis added)).

The Court, however, also homed in on other key differences between brick-and-mortar

schools and virtual schools. For instance, the Court pointed out that students enrolled in virtual

schooling in Knox County are “required to have a caregiver” present with them. [Am. Mem. Op.

& Order at 37]. In a sworn statement, T.W.’s mother informed the Court that both she and her

husband work, so they have to pay a caregiver to stay with T.W. because he cannot safely be in

school. [T.W.’s Mother’s Decl., Ex. 9-2, Doc. ¶ 6]. The fact that T.W.’s parents, and possibly

other parents, have to pay caregivers to oversee their children so they can receive an education

effectively converts their education from a free public education to a tuition-based education, the

Court noted in its opinion. [Am. Mem. Op. & Order at 37]. And “perhaps most importantly in

terms of a fact-specific analysis,” the Court wrote, students enrolled in virtual schooling “are still

required to enter their brick-and-mortar schools despite their status as virtually enrolled students

because the state of Tennessee does not allow them to take state tests from home.” [Id. at 37].

After pointing out all these differences, the Court did not go on to reach the sweeping

conclusion that the Knox County Board of Education claims that it reached—i.e., that virtual

schooling is per se “not a reasonable [alternative] accommodation.” [Knox Cty. Bd. of Educ.’s

Mot. at 10]. Rather, the Court concluded that “[a]ll this evidence, at a bare minimum, ‘raise[s]

questions going to the merits so serious, substantial, difficult, and doubtful as to make them fair

grounds for litigation’ on the issue of whether virtual schooling is a reasonable alternative

accommodation for Plaintiffs.” [Am. Mem. Op. & Order at 37 (quoting Six Clinics Holding

Corp., II v. CAFCOMP Sys., 119 F.3d 393, 407 (6th Cir. 1997))]. Again, the Knox County Board

of Education mischaracterizes the Court’s ruling and gives short shirt to all the details of its

ruling. In sum, it identifies no cognizable basis for relief under Rule 59(e), and the Court must

therefore deny its motion.

IV. CONCLUSION

The Knox County Board of Education’s Amended and Restated Motion to Alter or

Amend Judgment [Doc. 40] is DENIED to the extent that it contends it is suffering an undue

burden and that the Court committed a clear error of law.

So ordered.

ENTER:

s/J. RONNIE GREER

UNITED STATES DISTRICT JUDGE