Tennessee Education Association v. Reynolds

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

TENNESSEE EDUCATION )

ASSOCIATION, KATHRYN VAUGHN, )

ROLAND WILSON, MICHAEL STEIN, )

REBECCA DICKENSON, and MARY )

MCINTOSH, )

)

Plaintiffs, )

)

v. ) Case No. 3:23-cv-00751

) Judge Aleta A. Trauger

LIZZETTE GONZALEZ REYNOLDS, in )

her official capacity as Commissioner of )

the Tennessee Department of Education; )

and, in their official capacities as members )

of the Tennessee State Board of )

Education: KRISSI McINTURFF, )

JORDAN MOLLENHOUR, ROBERT )

EBY, WARREN WELLS, RYAN HOLT, )

LILLIAN HARTGROVE, NATE )

MORROW, LARRY JENSEN, )

DARRELL COBBINS, and BOB SMITH, )

)

Defendants. )

MEMORANDUM

Before the court is the Plaintiffs’ Motion to Alter or Amend Judgment (Doc. No. 102), filed

under Federal Rule of Civil Procedure 59(e), asking the court to vacate the Order granting

summary judgment in favor of the defendants and the entry of judgment for the defendants, based

on the court’s finding that the plaintiffs lack standing to bring their challenge under the Due

Process Clause of the Fourteenth Amendment. The defendants oppose the motion (Doc. No. 107),

and the plaintiffs have filed a Reply in further support thereof (Doc. No. 108). For the reasons set

forth herein, the motion will be denied.

I. LEGAL STANDARD

Parties may move “to alter or amend a judgment [within] 28 days after the entry of

judgment.” Fed. R. Civ. P. 59(e). “Under Rule 59, a court may alter the judgment based on: (1) a

clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or

(4) a need to prevent manifest injustice.” Gen. Motors, LLC v. FCA US, LLC, 44 F.4th 548, 563

(6th Cir. 2022) (quoting Clark v. United States, 764 F.3d 653, 661 (6th Cir. 2014)). “Rule 59(e)

motions are aimed at reconsideration, not initial consideration. Thus, parties should not use them

to raise arguments which could, and should, have been made before judgment issued.” Jones v.

Select Portfolio Servicing, Inc., 672 F. App’x 526, 530 (6th Cir. 2016) (quoting Wardle v.

Lexington–Fayette Urb. Cnty. Gov’t, 45 F. App’x. 505, 511 (6th Cir. 2002) (per curiam)).

District courts have “considerable discretion” over Rule 59 motions. Leisure Caviar, LLC

v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010). “Relief under Rule 59(e) is an

extraordinary remedy reserved for exceptional cases.” Adams v. Diamond, No. 3:18-CV-00976,

2022 WL 982365, at *1 (M.D. Tenn. Mar. 30, 2022) (quoting Hines v. Comm’r of Soc. Sec., 414

F. Supp. 3d 1080, 1081 (S.D. Ohio 2019), aff’d, No. 22-5224, 2023 WL 5596858 (6th Cir. June 1,

2023). And such extraordinary relief is “seldom granted.” Mitchell v. Citizens Bank, No. 3:10-

00569, 2011 WL 247421, at *1 (M.D. Tenn. Jan. 26, 2011) (Haynes, J.) (citation omitted).

II. PROCEDURAL HISTORY

The plaintiffs—the Tennessee Education Association (“TEA”) and five licensed Tennessee

public school teachers, three of whom are TEA members—filed this lawsuit on July 25, 2023,

stating a single claim under 42 U.S.C. § 1983. (Compl., Doc. No. 1.) They assert that a state law

and its implementing regulations (collectively, the “Ban” or “Prohibited Concepts Ban”) are

unconstitutionally vague, both facially and as applied, in violation of the Due Process Clause of

the Fourteenth Amendment to the United States Constitution, insofar as they fail to provide fair

notice of what the Ban requires or prohibits and they allow for arbitrary and discriminatory

enforcement. (Id. ¶ 120.) The defendants are the Commissioner of the Tennessee Department of

Education (“TDOE”) and the members of the Tennessee State Board of Education (“SBOE”), all

sued in their official capacity.

The court issued an Order in May 2024, denying the defendants’ Motion to Dismiss,

holding at that stage that the Complaint adequately alleged facts that, if true, established the

plaintiffs’ standing to bring their claim. The court also found that the defendants had not

established, as a matter of law, that the plaintiffs’ claim failed on the merits. Tenn. Educ. Ass’n v.

Reynolds, 732 F. Supp. 3d 783 (M.D. Tenn. 2024). In April 2025, however, after the parties had

the opportunity to conduct discovery, the court issued a ruling that denied the plaintiffs’ Motion

for Summary Judgment and granted the defendants’, based on the court’s finding, at the summary

judgment stage, that the plaintiffs lack standing to bring their claims. (Doc. Nos. 99

(Memorandum), 100 (Order).)

More specifically, relying primarily upon Christian Healthcare Centers, Inc. v. Nessel, 117

F.4th 826 (6th Cir. 2024), and applying the so-called “McKay factors” from McKay v. Federspiel,

823 F.3d 862, 867 (6th Cir. 2016), to the plaintiffs’ pre-enforcement challenge to the Ban, the court

found that the plaintiffs failed to establish injury-in-fact, a necessary component of standing. Under

McKay, the court found that the plaintiffs did not establish a history of prior enforcement of the

Ban against others, that the filing of citizen complaints is not the equivalent of enforcement by

defendants, and that the plaintiffs had not shown a real or substantial—as opposed to speculative

or theoretical—likelihood that the defendants’ actions in response to a citizen complaint would

cause the plaintiffs a cognizable injury. (Doc. No. 99 at 21–22.) After assessing the other McKay

factors, the court found that the plaintiffs failed to establish that these factors weighed in favor of

standing:

The non-existence of any history of past enforcement (despite the law’s having

passed nearly four years ago and the filing of numerous complaints at the local

level), the lack of warning letters, and the absence of any strong statutory attributes

making enforcement particularly easy, considered together, lead the court to

conclude that the individual plaintiffs lack standing to challenge the Ban. The

plaintiffs simply have not established that the “‘surrounding factual circumstances’

plausibly suggest a credible fear of enforcement.”

(Id. at 27 (quoting Christian Healthcare Ctrs., 117 F.4th at 848).)1

III. THE MOTION TO ALTER OR AMEND

The plaintiffs argue in support of their Motion to Alter or Amend that the court clearly

erred as a matter of law in its weighing of the McKay factors and, more specifically, in concluding

that citizen complaints are distinguishable from enforcement actions—for purposes of assessing

whether the plaintiffs had established a history of past enforcement—and in concluding that the

citizen enforcement provisions in this case did not strongly favor a finding of standing under the

third McKay factor, which asks whether the challenged statute has some “attribute” that “makes

enforcement easier or more likely, such as a provision allowing any member of the public to initiate

an enforcement action.” McKay, 823 F.3d at 869. (See Doc. No. 103 at 2, 5–6.) The plaintiffs argue

that citizen complaints are the sole means by which an enforcement action is initiated under the

Ban and that the Local Education Agencies (“LEAs”) to which citizen complaints are submitted

are required—under the Rules promulgated by the TDOE—to investigate citizen complaints. (See

1 The court also noted that it “reache[d] this conclusion uneasily,” having already

concluded in ruling on the Motion to Dismiss that the statute and regulations at issue are

unconstitutionally vague. (Doc. No. 99 at 26–27 (quoting Tenn. Educ. Ass’n, 732 F. Supp. 3d at

807).)

id. at 6 (“The citizen complaints at issue are not private or informal in nature. They are, by TDOE’s

own regulatory design, an essential part of the administrative enforcement process.”).)

The plaintiffs contend that Christian Healthcare supports their position that they would

suffer a cognizable injury “immediately upon the filing of a [citizen] complaint.” (Id. at 10.) They

also assert that other Sixth Circuit decisions support their contention that “the complaint process

is part of the Ban’s enforcement mechanism and confers standing here to challenge the Ban,

regardless of whether Plaintiffs have been forced to defend such a complaint at the Department

level.” (Id. at 10 (citing Kareem v. Cuyahoga Cnty. Bd. of Elections, 95 F.4th 1019 (6th Cir. 2024);

Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019); and Green Party v. Hargett, 791 F.3d

684 (6th Cir. 2015)).)

The defendants argue in their Response that the court’s initial decision was correct, that

the plaintiffs’ disagreement with the court’s analysis of Christian Healthcare Centers does not

demonstrate a “clear error of law,” and that the plaintiffs have improperly cited additional caselaw

that (a) they could have but failed to cite in their original briefing on the summary judgment

motions and (b) in any event is inapposite or distinguishable. (Doc. No. 107.)

In their Reply, the plaintiffs reiterate their argument that the citizen complaints permitted

under the Ban trigger enforcement, under Christian Healthcare, while also arguing that the

statutory structure of the Ban at issue here bears no resemblance to the Michigan statutory scheme

at issue in Christian Healthcare, because here the LEAs are required by the “regulations

promulgated and enforced by the Commissioner” to take “specific, non-discretionary action upon

receipt of a citizen complaint.” (Doc. No. 108 at 3.)

IV. DISCUSSION

The basis for the plaintiffs’ motion is that the court committed a clear error of law in

dismissing their claim for lack of standing. They have not presented newly discovered evidence or

an intervening change in controlling law, and they do not argue a need to prevent manifest

injustice. In support of their motion, the plaintiffs largely reiterate arguments already made or raise

arguments that they could have, but did not, raise in the summary judgment briefing. As set forth

above, however, a Rule 59(e) motion is not intended to provide an opportunity to re-argue a case

or to raise arguments that could have, but were not, raised before judgment was issued. Jones v.

Select Portfolio Servicing, Inc., 672 F. App’x at 530.

More to the point, the law in this area is not clear. The standards that apply in this

situation—when First Amendment rights are not at issue and a citizen complaint does not directly

result in a state enforcement action—have not been elucidated by the Supreme Court or the Sixth

Circuit. Under controlling precedent, it is not clear that a local investigation into whether a

“prohibited concepts” complaint is substantiated qualifies as an administrative enforcement action

by the state or is simply a filtering mechanism that determines whether a complaint should proceed

to an administrative enforcement action. See Ohio Civil Rights Comm’n v. Dayton Christian Schs.,

Inc., 477 U.S. 619, 625–626, n. 1 (1986) (recognizing “the actual filing of [an] administrative

action threatening sanctions” as a “harm sufficient to justify pre-enforcement review”). Likewise,

it is not clear that an investigation at the local level gives rise to a “cognizable injury” under

Christian Healthcare Centers. See Christian Healthcare Ctrs., 117 F.3d at 852 (characterizing

“enforcement credibility” as “hing[ing] on the answers to two questions: (1) How likely is anyone

to file a complaint against a Plaintiff . . . , and (2) if such a complaint were filed, what is the

likelihood that Defendants’ actions in response would cause a cognizable injury?”). In short, while

the plaintiffs may be correct that the court erred, because the law is not clear, any error was not a

clear error of law. Relief under Rule 59(e), therefore, is not warranted.

Finally, on the merits, the fact remains that, as of the date of the summary judgment

motions (nearly four years after passage of the Ban), no LEA has found a complaint to be

substantiated; no teachers have been found to have affirmatively and intentionally included or

promoted any prohibited concept; and the citizen complaint mechanism has not led to disciplinary

actions. Only three appeals (by complainants) have made their way to defendant State Board of

Education, and none of those appeals was resolved in favor of the citizen complainant. The

plaintiffs’ complaints of a subjective chill on their expression, standing alone, is not a cognizable

injury, nor is their subjective fear of enforcement.” They have failed to establish that the

“surrounding factual circumstances’ plausibly suggest a credible fear of enforcement.” Christian

Healthcare Ctrs., 117 F.4th at 848 (quoting Universal Life Church Monastery Storehouse vy.

Nabors, 35 F 4th 1021, 1034 (6th Cir. 2022)).

V. CONCLUSION

The plaintiffs’ Rule 59 motion (Doc. No. 102) will be denied. An appropriate Order is filed

herewith.

Meith bag —

United States District Judge

? To be sure, the plaintiffs’ subjective fear of enforcement is entirely reasonable. As the

court also noted previously, however, a fear of enforcement may be at the same time both

reasonable and speculative. (See Doc. No. 99 at 23 n.6 (citing Clapper v. Amnesty Int'l USA, 568

U.S. 398, 416 (2013)).)