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Tuesday January 18th, 2022 12:14AM

Tennessee governor's aide warned new COVID law was illegal

By The Associated Press
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NASHVILLE, Tenn. (AP) — Tennessee Gov. Bill Lee's office 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 up for reelection next year, has since said there are still “some issues we need to work through.” He has his concerns about how the law changes hospital visitation rules and what it may mean for the state’s ability to control its own workplace regulation going forward. But the governor has expressed no concern publicly about compliance with the Americans with Disabilities Act.

Privately, his legislative counsel warned lawmakers explicitly on the night the bill was passed that they were running afoul of federal law. The warning came in an email from Legislative Counsel Liz Alvey at 12:44 a.m. on Oct. 30 to Senate Speaker Randy McNally’s chief of staff, Rick Nicholson, and Luke Gustafson in Senate Majority Leader Jack Johnson’s office. The email referenced an earlier effort by the governor's office to flag the same issue.

“Proposed ADA accommodation 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 being 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 receives more legal guidance from his team before deciding whether he'll sign legislation. Lee’s office did not directly address that question in its comments.

“The governor noted there were items that need to be fixed in the upcoming session, and we will be working with lawmakers,” Lee's spokesman Casey Black responded in an email when the AP asked why Lee enacted the legislation, citing the email in which his counsel had warned that it would violate federal law. “On balance, the bill is a response to the federal government’s vast overreach.”

The law was almost immediately challenged in federal court, where families of young students with disabilities argued their children risk serious harm when schools aren't allowed to require masks indoors, where chances of infection are much greater.

U.S. District Judge Waverly Crenshaw has since halted the prohibition against school mask mandates from being implemented and has specifically instructed the state’s attorneys 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 defending the law's accommodations for students with disabilities. At Friday's hearing, the plaintiffs' counsel made a motion to enter the governor's office email as evidence and read it out loud in court. The state objected, citing the source of the legal analysis, to which Crenshaw responded: "“From a source who likely knows what she's talking about.”

The judge gave the plaintiffs until Tuesday to file a motion to submit the email into evidence.

Raising the stakes, just before the court hearing Friday, Lee announced he would let Tennessee’s COVID-19 state of emergency expire. As of midnight Friday, if not for the judge's injunction, schools would be unable to mandate masks indoors, even if they hit the severe rolling cases numbers under the new law.

Republican legislative leaders, who called the three-day sprint session against COVID-19 mandates after the governor declined to do so, have lauded the final bill despite objections from prominent business interests, school leaders and others.

The Senate speaker's office downplayed the legal concerns raised by the governor's office.

McNally "does not agree with this particular objection and supports the law the governor signed,” said his spokesperson, Adam Kleinheider.

Under the law, families can request accommodations for children with disabilities to have “an in-person educational setting in which other persons who may place or otherwise locate themselves within six feet (6′) of the person receiving the reasonable accommodation for longer than fifteen (15) minutes are wearing a face covering provided by the school.”

“The legislature obviously was simply ignoring whether or not the law they passed would actually pass legal muster,” Democratic Senate Minority Leader Jeff Yarbro told the AP. “And it’s shocking to me that the governor would sign this bill into law knowing full well that significant portions of it are illegal.”

Carol Westlake, the Tennessee Disability Coalition's executive director, said “a flagrant disregard of the Americans with Disabilities Act — a law that protects the lives of close to 1.6 million Tennesseans — is a real punch in the gut.”

When the state enacted the new law, it was already under court orders about Lee's mask policy in schools. His executive order was upended when three federal judges ruled to block the parental mask opt-out option for students in three counties, siding with disabled children who sued under the Americans with Disabilities Act. Lee let the opt-out order expire when he signed the new law.

Crenshaw's ruling against the new law's school mask limits sparked praise from public health advocates but drew strong condemnation from some Republicans. Senate Majority Leader Jack Johnson called it “judicial overreach.”

Tennessee's new law largely bars governments and businesses from requiring proof of COVID-19 vaccinations, and lets schools and other public entities require masks only in rare, dire public health situations, and only if Tennessee is under a state of emergency. Exemptions also are allowed if groups can show they would lose federal funding by complying with the state law, which conflicts with policies from President Joe Biden’s administration.

Masks are a key virus-prevention tool that are most effective when worn by a large number of people, public health experts say. The CDC has again recommended them for enclosed public spaces including schools, saying they don’t pose health risks for children older than toddlers.

Before Alvey joined Lee's office, she worked since 1999 with the Tennessee Senate, including as the previous majority leader's senior policy advisor. She held leadership positions in the Southern Legislative Conference and the Council of State Governments.

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