Tennessee s governor on Monday stood by his decision to sign sprawling limits on COVID-19 restrictions into law, even though his own office warned the bill would violate federal disability law and put the state at risk of losing federal funds.
Republican Gov. Bill Lee, in his first public comments since The Associated Press revealed his legislative counsel's email warning to lawmakers, said he thinks “the bill on balance is good." He also repeated a promise for a broad review of the new law, which he previously acknowledged includes “some issues we need to work through.” But when asked directly, he would not say whether he thinks the law's accommodations for people with disabilities — flagged last month by his office as violating federal law — need to be changed.
Instead, he said, “we have to determine first what really needs to be changed” before the next legislative session in January. He also would not specify when he was told by a staff lawyer that the bill violated federal law.
The bill Lee signed Nov. 12 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. It also assigns sole authority over COVID-19 quarantining to the state health commissioner, stripping decision-making ability from schools, among other entities.
In the early hours of Oct. 30, the night the bill passed, Lee’s legislative counsel privately warned staffers for Senate Republican leaders they were running afoul of the Americans with Disabilities Act, or ADA. The email, sent at 12:44 a.m., noted an earlier effort by the governor’s office to flag the same issue. The Associated Press obtained the email in response to a public records request.
“Proposed ADA accommodation in the bill is a violation of the ADA and will put us at risk of losing federal funding,” Lee’s legislative counsel, Liz Alvey, had written in the email, weighing in as a flurry of last-minute changes were being debated and added.
Lee noted Monday that on some provisions, “we had debate within the governor’s office and the Legislature ” saying, “that’s the way that process works.” His signature made the law effective immediately as written.
“We will go through the process between now and then, of each piece of that bill, making certain that we have agreement between the Legislature and our office, about whether or not those provisions are as they should be," Lee said, referring to the 2022 legislative session. "We’ll look at all of them and we'll clean up what needs to be cleaned up."
The federal protections are at the heart of a lawsuit by families of children with disabilities, who so far have succeeded in getting a federal judge to block the new law's tight limits on COVID-19 requirements in schools — including on mask mandates.
Carol Westlake, the Tennessee Disability Coalition’s executive director, said after the email became public that “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.”
Plaintiffs in the lawsuit argue the state law’s restrictions put Tennessee school districts at risk of losing federal American Recovery Plan funding by interfering with districts’ ability to develop their own COVID-19 safety rules.
At a hearing Friday, the plaintiffs’ counsel moved 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 Judge Waverly Crenshaw responded: ”“From a source who likely knows what she’s talking about.”
In a motion Monday asking to submit the email into evidence, plaintiffs' attorneys cited the AP report and wrote that the email “cuts through any double-speak about the bill’s impact on future funding."
“Her email also conflicts with, and impeaches, the official position of the Defendants on the issues before the Court,” they wrote.
Republican legislative leaders, who called the three-day session to take action 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.
Senate Speaker Randy McNally, for one, “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 people within six feet and for longer than fifteen minutes are wearing a face covering provided by the school.
The law passed after three federal judges ruled to block the governor's parental mask opt-out option for students from applying in three counties. Lee let the opt-out order expire when he signed the new law.
Exemptions also are allowed if groups can show they would lose federal funding by complying with the state law, which conflicts with policies from Democratic President Joe Biden’s administration.
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