NASHVILLE, Tennessee (AP) – Tennessee Gov. Bill Lee’s office has warned lawmakers that their sprawling bill limiting COVID-19 restrictions would violate federal law that protects 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 bill anyway. Less than two weeks later, the Republican governor signed it into law.
Lee, who is running for reelection next year, has since said there are “some issues we need to work on.” He is concerned about how the law changes hospital visitation rules and what this may mean for the state’s ability to control its own workplace regulations in the future. But the governor has publicly expressed no concerns about compliance with the Americans with Disabilities Act.
Privately, his legislative counsel explicitly warned lawmakers on the night the bill was passed that they were in violation of federal law. The warning came in an email from Legislative Counsel Liz Alvey at 12:44 a.m. on October 30 to Chief of Staff to Senate Speaker Randy McNally, 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 report the same issue.
“The accommodation proposed by the ADA in the bill is a violation of the ADA and will put us at risk of losing federal funding,” Alvey warned as a flurry of last-minute changes were debated and added. .
The final bill was approved about an hour later that morning.
It’s unclear when or if she gave that legal advice to the governor, who is receiving more legal advice from her team before deciding whether to sign the legislation. Lee’s office did not directly address this issue in its comments.
“The governor noted that there were elements that need to be corrected in the next session, and we will be working with lawmakers,” Lee spokesman Casey Black responded when the PA asked why Lee had enacted the legislation, citing the email in which his attorney warned that it would violate federal law. âOverall, the bill is a far reaching response from the federal government. “
The law was almost immediately challenged in federal court, where families of young disabled students argued that their children risked serious harm when schools are not allowed to require masks indoors, where the risks of infection are much higher.
U.S. District Judge Waverly Crenshaw has since suspended the ban on the implementation of school mask warrants and has specifically tasked state prosecutors to explain how the new law complies with the ADA.
State Attorney General Herbert Slatery’s office, representing Lee and his education commissioner, is now tasked with advocating for statutory accommodations for students with disabilities. In Friday’s hearing, the plaintiffs’ attorney filed a motion to seize the email from the governor’s office as evidence and read it aloud in court. The state objected, citing the source of the legal analysis, to which Crenshaw replied: “” From a source who probably knows what she is talking about. “
The judge gave the plaintiffs until Tuesday to file a motion to submit the email into evidence.
Raising the ante, just before the court hearing on Friday, Lee announced he would let Tennessee’s COVID-19 state of emergency expire. At midnight on Friday, without the judge’s injunction, schools could not impose masks indoors, even if they reached the number of severe cases under the new law.
Republican legislative leaders, who called the three-day sprint session against COVID-19 mandates after the governor refused to do so, welcomed the final bill despite objections from prominent business interests, school leaders and others.
The Senate Speaker’s Office played down legal concerns raised by the governor’s office.
McNally “does not agree with this particular objection and supports the law signed by the governor,” said spokesman Adam Kleinheider.
Under the law, families can request accommodations for children with disabilities so that they have “an in-person educational setting in which other people who can position themselves or be within six feet (6 ft. ) of the person receiving reasonable accommodation for more than fifteen (15) minutes wearing a face covering provided by the school.
“The legislature was clearly simply unaware of whether or not the law they passed would pass legal scrutiny,” Senate Democratic Minority Leader Jeff Yarbro told the PA. “And it is shocking to me that the governor signs this bill knowing full well that significant parts of it are illegal.”
Carol Westlake, executive director of the Tennessee Disability Coalition, said that “blatant disregard for the Americans with Disabilities Act – a law that protects the lives of nearly 1.6 million Tennessee – is a real punch in The belly”.
When the state enacted the new law, it was already under court orders regarding Lee’s mask policy in schools. His executive order was overturned when three federal judges ruled to block the option of removing the parental mask for students in three counties, siding with children with disabilities who sued under the Americans with Disabilities Act. Lee let the take down order expire when he signed the new law.
Crenshaw’s decision against the new law’s school mask limits garnered praise from public health advocates, but was strongly condemned by some Republicans. Senate Majority Leader Jack Johnson called it “judicial overshoot”.
Tennessee’s new law largely prohibits governments and businesses from requiring proof of COVID-19 vaccination, and allows schools and other public entities to require masks only in rare and dire public health situations , and only if Tennessee is in a state of emergency. Exemptions are also allowed if the groups can show that they would lose federal funding by complying with state law, which conflicts with the policies of President Joe Biden’s administration.
Masks are a key virus prevention tool that are most effective when worn by large numbers of people, according to public health experts. The CDC has again recommended them for enclosed public spaces, including schools, saying they do not pose health risks to children older than toddlers.
Before Alvey joined Lee’s office, she had worked with the Tennessee Senate since 1999, most notably as a senior policy adviser to the previous majority leader. She has held senior positions in the Southern Legislative Conference and the Council of State Governments.