June 24, 2021

«Name»
«County»
«Street_Address»
«City», «ST» «Zip»

Re: School Board Enforcement of Mandated Face Coverings for Students

Raises Potential Exposure to Individual Liability

Dear «Name»:

Tennessee Stands is a nonprofit social advocacy organization working to protect the

individual liberty of all Tennesseans. One of its primary purposes is to assure that those in
government authority, including the Governor, county executives, and legislators restrict their
authority to only that which is granted under the Tennessee Constitution.

As the 2021 academic school year came to a close across Tennessee in May and June of
this year, several local school systems across Tennessee continued to impose mandatory face
coverings for students and parents of students to wear facial coverings while on school grounds.
Such policy mandates extended well beyond the expiration of any such mask mandates imposed
by health departments or county executives. No statewide mask mandate was ever imposed under
any Executive Order from the Governor in the State of Tennessee, and there has been no judicial
recognition of the executive power of the Governor to delegate such authority to local county
executives. This mandated protocol was also rigidly enforced at several graduation
commencement ceremonies across the State of Tennessee.

Chancery Court Ruling in Citizens for Limited Government, et al. v. Jason Golden,
et al. Case No. 20CV-49753 (April 30, 2021)

On April 30, 2021, the Chancery Court for Williamson County, Tennessee issued a
Memorandum and Order in the case of Citizens for Limited Government, et al. v. Jason Golden, et
al., Case No. 20CV-49753. A copy of this Order and Memorandum is enclosed with the portions
relevant to this letter highlighted. This case involved a challenge to the face-covering requirements
of the Williamson County public school system implemented in response to COVID-19.
«Name»
June 24, 2021, p. 2

On June 22, 2020, acting without any express or delegated grant of legislative or executive
authority, and pursuant to an administrative policy directive from the State Board of Education,
the Williamson County Board of Education (“WCBOE”) submitted a proposed “Reopening
Framework” which included mandated face-covering for all students enrolled in the Williamson
County School System.

On August 3, 2020, Governor Bill Lee issued Executive Order 55 which provided, in part:
“Local education agencies, schools, and institutions of higher learning are strongly encouraged to
implement a policy requiring the use of face coverings by students and staff, with appropriate
exemptions, and consistent with any policies issued by the Tennessee Department of Education.”
Again, this Order did not purport to require local school districts to implement mandatory face-
covering for students upon the re-opening of schools.

Judge Michael Binkley, who presided over the case of Citizens for Limited Government v.
Golden, never ruled on the merits of this litigation, but instead addressed more technical, legal
issues having to do with whether the named plaintiffs in the action possessed requisite legal
standing sufficient to file such claims and whether, by virtue of the expiration of Governor Lee’s
Executive Orders No. 55, and as later amended in Order No. 73, had expired, these claims were
rendered moot.

There is currently before the Court an intervening petition by individuals who assert
standing to litigate the mask mandate requirement imposed by the WCBOE. As of the date of this
correspondence, the Court has yet to rule on the right of the Intervening Plaintiffs to challenge the
legal authority of WCBOE to impose these restrictions.

The Court did issue a ruling, for the benefit of any reviewing court, i.e. the Tennessee Court
of Appeals, which addressed the legal authority of the WCBOE to mandate face-coverings.
Specifically, on page 11 of the Court’s Memorandum and Order, Judge Binkley ruled as follows:

Alternatively, in the event a reviewing Court were to conclude Plaintiffs do in fact have standing
to bring their claims, the Court makes the following additional findings of fact and conclusions of
law pursuant to Tennessee Rule of Civil Procedure 56:

Plaintiffs’ claims for declarations to the effect that (i) WCBOE’s face-covering
requirement exceeds its authority as a local school board; and (ii) WCBOE’s face-
covering requirement denies Williamson County students substantially equal
educational opportunities as are afforded to other public school students within
Tennessee, each survive a mootness inquiry. Thus, the Court makes the following
alternative ruling on the merits of those claims.

(Memorandum and Order of April 30, 2021, at p. 11).

«Name»
June 24, 2021, p. 3

After analyzing these claims, the Court issued the following determination on page 15 of its
Memorandum and Order:

The Court is not convinced, as a matter of law, that WCBOE acted within its
statutory authority at the time it promulgated its face-covering requirements.
Further, the policy decisions promulgated by Mayor Anderson and Governor Lee
in February 2021 and April 2021 are inconsistent with WCBOE's continued
enforcement of face-covering requirements. With respect to WCBOE's authority
to issue a face-covering requirement, Defendants· Motion to Dismiss or for
Summary Judgment is alternatively DENIED. The Court cannot find, as a matter
of law, Defendants have acted within the authority given to them by the legislature
when enacting face-covering requirements.

(Id. at p. 15).

Local School Officials May Be Denied Qualified Immunity for Decisions Imposing
Disciplinary Action for Refusal to Comply with School-Board Mandated Facial-
Covering Requirements.

School officials may be denied the defense of qualified immunity when sued for violation
of a student’s constitutional and civil rights under 42 U.S.C. § 1983, when their actions are deemed
to “violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
For a constitutional right to be clearly established, “[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). To determine
whether a constitutional right is “clearly established,” the court looks to decisions of the Supreme
Court, then to decisions of this court and courts within this circuit, and last to decisions of other
circuits. Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir.2006); Knisley v. Pike County Joint
Vocational School Dist., 604 F.3d 977, 981–82 (6th Cir. 2010) (denying qualified immunity for
strip search of students).

In Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the Supreme Court
concluded that students facing suspensions of ten days or fewer have a property interest in
educational benefits and a liberty interest in their reputations that qualify them for protection
against arbitrary suspensions under the Due Process Clause. See Goss, 419 U.S. at 576, 95 S.Ct.
729 (“A 10–day suspension from school is not de minimis in our view and may not be imposed in
complete disregard of the Due Process Clause.... Neither the property interest in educational
benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so
insubstantial that suspensions may constitutionally be imposed by any procedure the school
chooses, no matter how arbitrary.”); see also id. at 579, 95 S.Ct. 729 (“The student's interest is to
avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate
consequences.”). See also Laney v. Farley, 501 F.3d 577, 581 (6th Cir.2007); Webb v.
«Name»
June 24, 2021, p. 4

McCullough, 828 F.2d 1151, 1159 (6th Cir.1987); Heyne v. Metropolitan Nashville Public
Schools, 655 F.3d 556, 564–65 (6th Cir. 2009).

Tennessee Stands has issued this letter to the chair of all 140 school districts in the State of
Tennessee for the purpose of placing these local educational agencies on notice that absent any
grant of specific legislative authority, any action to implement forced face-covering requirements
on students attending public schools in this state will be challenged, and to further apprize school
boards and local school officials of the potential for individual liability under 42 U.S.C.§ 1983 for
imposing any disciplinary action against students who fail or refuse to comply with such
requirements in the future.

Very truly,

_________________________
Larry L. Crain
General Counsel

_________________________
Russell Newman
Senior Litigator

_________________________
Gary Humble
Executive Director