Tennessee Assistant Governor Warns New COVID Law Is Illegal

Tennessee Gov. Bill Lee’s office warned lawmakers that their sweeping COVID-19 restriction law would violate federal law protecting people with disabilities and put 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 law anyway. Less than two weeks later, the Republican governor signed it into law.

Lee, who will be re-elected next year, has since said that there are “some issues we need to work on.” He is concerned about how the law is changing the rules for visiting hospitals and what this might mean for the state’s ability to control its own operating rules in the future. But the governor has not publicly raised concerns about Americans with Disabilities Act compliance.

Privately, his legal adviser explicitly warned lawmakers on the night of the bill that they were violating federal law. The warning was emailed from Legislative Counselor Liz Alvey on October 30 at 12:44 pm to Senate Speaker Randy McNally’s Chief of Staff to Rick Nicholson and Luke Gustafson in Senate Majority Leader Jack Johnson’s office. The email mentioned an earlier attempt by the governor’s administration to flag the same issue.

“The proposed placement of the ADA in the bill is in violation of the ADA and would put us at risk of losing federal funding,” Alvi warned as a host of last-minute changes were discussed and added.

The final bill was approved the same morning in about an hour.

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It is unclear when and whether she gave this legal advice to the governor, who receives more legal advice from her team before deciding whether to sign the law. Lee’s office did not answer this question directly in their comments.

“The Governor noted that there are issues that need to be addressed in the upcoming meeting and we will be working with legislators,” spokesman Lee Casey Black responded in an email when AP asked why Lee passed the law, citing an email in which he The lawyer warned that this would violate federal law. “Overall, the bill is a response to the excessive efforts of the federal government.”

The law was almost immediately challenged in federal court, where families of young students with disabilities argued that their children were in serious harm when schools were not allowed to require masks, when people gathered in enclosed spaces where the likelihood of infection was much higher.

U.S. District Judge Waverly D. Crenshaw, who oversees the lawsuit, has since suspended enforcement of the school mask ban and specifically tasked state attorneys with explaining how the new law complies with ADA requirements.

State Attorney General Herbert Slatery’s office, representing Lee and his educational commissioner, must now defend how the law will treat students with disabilities. Raising the stakes, right before Crenshaw began hearing evidence on the case on Friday, the governor announced that he would allow the COVID-19 state of emergency in Tennessee to expire. As of midnight Friday, were it not for the injunction, schools would not have been able to introduce masks indoors, even if they were highlighted under the new law.

Republican legislators, who convened a three-day sprint session against COVID-19 mandates after the governor refused to do so, praised the end product, despite objections from prominent business circles, school leaders and others.

The Senate Speaker’s office expressed no concern over how the law accommodates people with disabilities and downplayed the legal concerns raised by the governor’s office.

McNally “disagrees with this particular objection and supports the bill signed by the governor,” said his spokesman, Adam Kleinheider.

Under the law, families can request accommodations for their children with disabilities to have a “full-time school” in which others who can accommodate or otherwise be within six feet (6 feet) of a person receiving reasonable accommodations for longer than fifteen (15) minutes – wearing a mask provided by the school. ”

“Obviously, the legislature was simply ignoring the question of whether the law they passed was actually legal,” Senate Democratic minority leader Jeff Yarbrough told AP. “And it shocks me that the governor signed this bill, knowing full well that a large part of it is illegal.”

When the state passed the new law, it was already under court orders that blocked the governor’s policy to loosen school mask requirements. The order was overturned when three federal judges ruled to block the option to waive the parental mask for students in three counties, sided with disabled children who are suing under the Americans with Disabilities Act. Lee allowed the waiver order to expire when he signed the new law.

Crenshaw’s ruling against school mask restrictions by the new law drew praise from public health advocates but drew strong condemnation from some Republicans, who called the move to block state laws limiting school mask mandates “judicial abuse.”

“The legislation gives parents the choice of whether their children should wear a mask while catering to the needs of those with special needs,” Senate Majority Leader Jack Johnson said in a statement on Crenshaw’s decision.

Tennessee’s new law largely prohibits governments and businesses from requiring proof of COVID-19 vaccination, and also allows schools and other government agencies to require masks only in rare, dire health situations, and only if a state of emergency is in force in Tennessee. Exceptions are also allowed if groups can prove that they will lose federal funding by complying with state law, which is contrary to the policies pursued by the administration of President Joe Biden.

Masks are a key protection against viruses, and are most effective when worn by large numbers of people, according to public health experts. The CDC has again recommended them for use in indoor public places, including schools, saying they pose no health hazard to older children.

Prior to appointing Alvi as his chief legal adviser, Lee served since 1999 in the Tennessee Senate, where she served as senior policy advisor to the previous majority leader and held leadership positions in the Southern Legislature and the Council of State Governments.

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