R. K. v. Bill Lee

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0249p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
R. K., a minor, by and through her mother and next
│
friend, J. K.; W. S., a minor, by and through her parent
│
and next friend, M. S.; S. B., a minor, by and through
│
his parents and next friends, M. B. AND L. H.; M. S., a
│
minor, by and through her parent and next friend,
│
K. P.; T. W., a minor, by and through her parent and
│
next friend, M. W.; M. K., a minor, by and through her > No. 22-5004
parent and next friend, S. K.; E. W., a minor, by and │
through his parent and next friend, J. W.; J. M., a │
minor, by and through her parent and next friend, │
K. M., and on behalf of those similarly situated, │
Plaintiffs-Appellees, │
│
│
v. │
│
BILL LEE, in his official capacity as Governor of │
Tennessee; PENNY SCHWINN, in her official capacity │
as Commissioner of the Tennessee Department of │
Education, │
Defendants-Appellants. │
┘

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
No. 3:21-cv-00853—Waverly D. Crenshaw, Jr., Chief District Judge.

Argued: July 25, 2022

Decided and Filed: November 18, 2022

Before: NORRIS, SUHRHEINRICH, and CLAY, Circuit Judges.
_________________

COUNSEL

ARGUED: James R. Newsom, III, OFFICE OF THE TENNESSEE ATTORNEY GENERAL
AND REPORTER, Memphis, Tennessee, for Appellants. Justin S. Gilbert, GILBERT LAW,
PLC, Chattanooga, Tennessee, for Appellees. ON BRIEF: James R. Newsom, III, Matthew
Dowty, Reed N. Smith, Robert W. Wilson, OFFICE OF THE TENNESSEE ATTORNEY
 No. 22-5004 R. K., et al. v. Lee, et al. Page 2

GENERAL AND REPORTER, Memphis, Tennessee, for Appellants. Justin S. Gilbert,
GILBERT LAW, PLC, Chattanooga, Tennessee, Bryce W. Ashby, Brice M. Timmons, Craig A.
Edgington, DONATI LAW, PLLC, Memphis, Tennessee, Jessica F. Salonus, THE SALONUS
FIRM, PLC, Jackson, Tennessee, for Appellees.

NORRIS, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined.
CLAY, J. (pp. 9–14), delivered a separate opinion concurring in the judgment only.

_________________

OPINION
_________________

ALAN E. NORRIS, Circuit Judge. In 2021, the Tennessee General Assembly enacted a
new statute (“the Act”) in response to the COVID-19 pandemic. Tenn. Code Ann. § 14-1-101 et
seq. Among other things, the Act addresses vaccination, masking, and quarantine decisions. For
example, “[a] local health entity or official, mayor, governmental entity, or school does not have
the authority to quarantine a person or private business for purposes of COVID-19,” Tenn. Code
Ann. § 14-4-101(b), and “a school or a governing body of a school shall not require a person to
wear a face mask while on school property” unless various conditions are met. Tenn. Code.
Ann. § 14-2-104(a).

Immediately after passage of the Act, and prior to seeking accommodation under its
terms, eight minor students with disabilities (a point that is uncontested) filed suit through their
parents, alleging that the new legislation violated the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Equal
Protection Clause of the Fourteenth Amendment; and the Supremacy Clause, Article VI, clause
2. Plaintiffs sought a preliminary injunction, which the district court granted with respect to the
two sections of the Act cited above. Specifically, the district court enjoined defendants, Bill Lee,
the Governor of Tennessee, and Penny Schwinn, the Commissioner of the Tennessee Department
of Education, from enforcing “Tennessee Code Annotated § 14-2-104 ‘Face coverings for
schools’; and [] Tennessee Code Annotated § 14-4-101(b) to the extent that it prohibits local
health officials and schools from making quarantining decisions as they relate to public schools.”
R.K. by and through J.K. v. Lee, 575 F.Supp.3d 957 993 (M.D. Tenn. 2021). Defendants
appealed pursuant to 28 U.S.C. § 1292(a)(1).
 No. 22-5004 R. K., et al. v. Lee, et al. Page 3

The district court concluded that the Act, despite the inclusion of language that provides
that “[a] school shall, to the extent practicable, provide a reasonable accommodation pursuant to
the Americans with Disabilities Act,” Tenn. Code Ann. § 14-2-104(d)(1), fails to comply with
the requirements of either the ADA or the Rehabilitation Act.

I.

Article III limits federal courts’ jurisdiction to actual cases or controversies. Spokeo, Inc.
v. Robins, 578 U.S. 330, 337 (2016). The doctrine of standing “limits the category of litigants
empowered to maintain a lawsuit in federal court to [those who] seek redress for a legal wrong.”
Id. at 338. The “irreducible constitutional minimum of standing” requires (1) an injury in fact
that is (2) fairly traceable to the defendant’s conduct and (3) likely redressable by a favorable
judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Moreover, “a party
who fails to show a substantial likelihood of standing is not entitled to a preliminary injunction.”
Memphis A. Randolph Inst. v. Hargett, 978 F.3d 378, 386 (6th Cir. 2020) (quotation marks
omitted).

1. Injury in Fact

“[U]nder Article III, an injury in law is not an injury in fact. Only those plaintiffs who
have been concretely harmed by a defendant’s statutory violation may sue . . . over that violation
in federal court.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2205 (2021). Similarly, just
because Congress has created an express statutory right of action does not mean a plaintiff is
injured whenever a defendant violates the underlying statutory duty. See id.; see also Spokeo,
578 U.S. at 341 (“Article III standing requires a concrete injury even in the context of a statutory
violation.”).

The Act specifically provides that school officials “shall . . . to the extent practicable,
provide a reasonable accommodation” to any student who requests it. Tenn. Code Ann. § 14-2-
104(d)(2). It then contemplates one such accommodation: “the school shall place the [student] in
an in-person educational setting in which other persons who may place or otherwise locate
themselves within six feet (6’) of the person receiving reasonable accommodation for longer than
fifteen (15) minutes are wearing a face covering provided by the school . . . .” Id. The plaintiffs
 No. 22-5004 R. K., et al. v. Lee, et al. Page 4

provide little explanation as to why this accommodation would concretely injure them, other than
to quote the district court’s findings of fact at length. But even those findings, which describe
the undisputed fact that the plaintiffs represent a putative class of students more susceptible to
COVID-19 complications, fail to explain why the six-foot bubble accommodation would be
insufficient.

Equally significant is plaintiffs’ failure to test the practical effect of the Act by seeking an
accommodation; instead, they filed this suit on the heels of the Act’s passage. A concrete injury,
such as falling ill from COVID-19 due to a lack of universal masking, must be more than
speculative. “A threatened injury must be ‘certainly impending’ to constitute injury in fact.”
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quotation omitted). Indeed, no action to
enforce the Act would ever be directed at any of these plaintiffs—it would be directed only at
their schools, should they decide to violate the Act—which further attenuates the risk of harm the
plaintiffs may suffer. Moreover, the Act does not prohibit individual students from wearing
masks at any time; it merely redefines how universal mask mandates can be imposed.

Finally, plaintiffs’ argument that they are injured by the Act because it categorically
violates the ADA amounts to an overly generalized grievance. The Supreme Court “has
repeatedly held that an asserted right to have the Government act in accordance with law is not
sufficient, standing alone, to confer jurisdiction on a federal court.” Allen v. Wright, 468 U.S.
737, 754 (1984), abrogated in part on other grounds by Lexmark Int’l., Inc. v. Static Control
Components, Inc., 572 U.S. 118, 129–30 (2014).

2. Traceability

Whatever injury the plaintiffs may suffer is not fairly traceable to the two defendants
here: Governor Lee and Commissioner of Education Schwinn. In cases where the plaintiff’s
injury “depends on the unfettered choices made by independent actors not before the court[],”
the plaintiff has the heightened burden “to adduce facts showing that those choices have been or
will be made in such manner as to produce causation and permit redressability of injury.” Lujan,
504 U.S. at 562 (citations omitted).
 No. 22-5004 R. K., et al. v. Lee, et al. Page 5

Governor Lee’s obligation to ensure that the state’s laws are faithfully executed does not,
by itself, mean that any injury caused by the Act is fairly traceable to him. See Universal Life
Church Monastery Storehouse v. Nabors, 35 F.4th 1021, 1031 (6th Cir. 2022) (“[T]he
Governor’s ‘take care’ power does not suffice to invoke federal jurisdiction. We need specific,
plausible allegations about what the Governor has done, is doing, or might do to injure
plaintiffs.”).

Nor does the Governor’s role in declaring states of emergency change that. The Act
requires that severe conditions exist for universal masking to be imposed. Tenn. Code Ann.
§ 14-2-104(a)(2). Severe conditions, in turn, require surging cases and a declaration by the
Governor of “a state of emergency for COVID-19.” Tenn. Code Ann. § 14-1-101(20)(A). The
plaintiffs point to no legal duty of the Governor, however, to ever make such a declaration.
Rather, making such a declaration is vested in his discretion as the state’s chief executive. See
Tenn. Code Ann. § 58-2-107(b)(2) (providing a state of emergency “may be declared by the
governor if the governor finds an emergency has occurred or occurrence of threat thereof is
imminent”) (emphases added).

The case against the Commissioner of Education is arguably a closer one, but it still falls
short. Commissioner Schwinn has specific authority to “withhold future distributions of school
funds” from schools that violate the Act. Tenn. Code Ann. § 14-2-104(e). But, like Governor
Lee, she has no duty to do that—the Act says only that she “may withhold” the funds, so
withholding funds is committed to her discretion. Nor does the Act suggest that schools
violating the statute are automatically disentitled from receiving state funds in the future—the
funding hold requires action from the Commissioner. Tenn. Code Ann. § 14-2-104(e).
Moreover, as noted above, any enforcement action (should it occur) will never be directed at the
plaintiffs—it will be directed only at their schools. See id. And the plaintiffs do not connect the
dots between Commissioner Schwinn’s withholding of school funding (if that occurs) and any
injury the plaintiffs would thereby suffer. So, even if Commissioner Schwinn enforced the Act,
it is speculative whether that action would concretely injure the plaintiffs.

To put it another way, the Act does not place Commissioner Schwinn in a position
adverse to these plaintiffs, which means that any injury they suffer is not fairly traceable to her
 No. 22-5004 R. K., et al. v. Lee, et al. Page 6

(potential) enforcement actions. Cf. Muskrat v. United States, 219 U.S. 346, 361 (1911)
(“[J]udicial power . . . is the right to determine actual controversies arising between adverse
litigants.”) (emphasis added). The Act places these two defendants in positions adverse only to
the schools (or their boards or administrators), if at all. But no school is a party to this case, and
the plaintiffs nowhere suggest any intention to make that happen.

All of the foregoing, which has focused on the Act’s masking and ADA accommodation
provisions, applies with equal force to the Act’s quarantining provision, which vests the “sole
authority to determine quarantine guidelines for” any “private business or school” in the state’s
commissioner of health; it also provides that “[a] local health entity or official, . . . or school does
not have the authority to quarantine a person or private business for purposes of COVID-19.”
Tenn. Code Ann. § 14-4-101(a)(2), (b). Assuming arguendo that the ADA requires that school
officials or local health officials have the authority to make quarantining decisions, any breach of
that ADA-duty is not traceable to either defendant here. It is traceable, if at all, to the
commissioner of health, who could avoid the (assumed) ADA violation by delegating her
quarantining authority to schools or local health officials. But she is not a defendant here. For
that reason, the district court’s preliminary injunction as to the quarantining provision—which
necessarily can apply only to the named defendants, not the health commissioner—cannot
redress any injury caused by the Act’s quarantine provision.

The plaintiffs argue that traceability exists because the Act severely limits universal
masking and quarantining of COVID-positive students, thereby preventing schools from offering
students reasonable accommodations. However, plaintiffs nowhere explain why universal
masking and quarantining constitute the only reasonable accommodations under the ADA.
There is reason to think that a more tailored accommodation—perhaps even the six-foot bubble
accommodation contemplated by the Act—would be sufficient to comply with the ADA. See
E.T. v. Paxton, 19 F.4th 760, 768 (5th Cir. 2021) (“[T]here are any number of other ways schools
could accommodate plaintiffs’ disabilities without traversing either [an executive order banning
mask mandates] or federal law.”).
 No. 22-5004 R. K., et al. v. Lee, et al. Page 7

3. Redressability

To satisfy the redressability element of standing, the plaintiff must show that it is “likely,
as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Lujan, 504 U.S. at 561 (quotation omitted). Redressability can be a low bar to clear, at least
where a plaintiff seeks redress for “a completed violation of a legal right”—in which case,
nominal damages alone provide sufficient redress. Uzuegbunam v. Preczewski, 141 S. Ct. 792,
802 (2021). “Remedies, however, ordinarily operate with respect to specific parties.” California
v. Texas, 141 S. Ct. 2104, 2115 (2021) (quotation omitted). “In the absence of any specific
party, they do not simply operate on legal rules in the abstract.” Id. (quotation omitted). Rather,
prospective relief can redress a future injury only if “the court [may] enjoin[] not the execution
the statute, but the acts of the official, the statute notwithstanding.” Id. (quoting Massachusetts
v. Mellon, 262 U.S. 447, 488 (1923)).

Here, the plaintiffs do not seek redress for a completed violation of a legal right; they
seek only prospective relief to protect against future violations. Because the plaintiffs’ injuries
are not fairly traceable to any defendant here, no remedy applicable to those defendants (be it an
injunction or a declaration) would redress the plaintiffs’ alleged injuries. See Allen, 468 U.S. at
757 (noting that “the federal judiciary may not redress” an injury unless it is “fairly traceable to
the Government conduct respondents challenge as unlawful”).

In sum, we conclude that plaintiffs have failed to bear their burden of establishing
standing. In reaching this decision, we note that two of our sister circuits have recently voided
injunctions against similar laws for lack of standing. See Disability Rights S.C. v. McMaster,
24 F.4th 893 (4th Cir. 2022); E.T. v. Paxton, 19 F.4th 760 (5th Cir. 2021). While these decisions
do not control our own, in this instance we find them instructive inasmuch as they found the
same jurisdictional flaw as we did under similar, though not identical, circumstances.

II.

After oral argument was held in this matter, plaintiffs filed a Motion for Suggestion of
Mootness of Appeal based upon the evolving COVID-19 situation in Tennessee. Specifically,
they note that none of the school districts in Tennessee is currently operating under a mask
 No. 22-5004 R. K., et al. v. Lee, et al. Page 8

mandate and positive COVID-19 cases have dropped dramatically in recent weeks. As a result,
“Plaintiffs cannot point to evidence that they currently face [a spike in community infection
rates], or, given the trending data, that they reasonably anticipate facing them.” Motion for
Suggestion of Mootness at 6. For that reason, they suggest that the appeal of the district court’s
preliminary injunction order be dismissed as moot.

While this appeal may well be moot, the complaint itself has failed to set out an actual
case or controversy and thus lawsuit itself is subject to dismissal for lack of jurisdiction. To
dismiss this appeal on mootness grounds would mean that a jurisdictionally flawed case remains
in the district court. That approach serves no one’s best interest, including the plaintiffs’ who
would presumably wish to challenge the Act if, and when, circumstances changed and they could
point to actual, rather than speculative, harm. In our view, it is far better to dismiss the case in its
entirety for lack of jurisdiction. This is a course of action that we have taken when faced when
both standing and mootness deficiencies are present. See Ass’n of Am. Physicians & Surgeons v.
FDA, 13 F.4th 531, 536 (6th Cir. 2021) (citing Sinochem Int’l Co. v. Malaysia Shipping Corp.,
549 U.S. 422, 431 (2007)) (observing that this court has “discretion to choose between non-
merits grounds for dismissing a suit”).

III.

The district court’s injunction is vacated and the cause is remanded with instructions to
dismiss the action for lack of jurisdiction.
 No. 22-5004 R. K., et al. v. Lee, et al. Page 9

_________________

CONCURRENCE
_________________

CLAY, Circuit Judge, concurring in the judgment only. After argument was heard in this
case, Plaintiffs filed a motion for suggestion of mootness, noting that, in light of changed public
health conditions and advancements in treatment options, none of the Plaintiffs required
universal masking to access schools. Defendants opposed this motion, arguing that this Court
should instead dismiss the case on standing grounds. Although I agree with the majority that this
case should be dismissed for lack of jurisdiction, I believe it should be dismissed for mootness,
and not for lack of standing.

Both standing and mootness are jurisdictional doctrines derived from the Constitution’s
grant of power to the federal courts to resolve only live “cases” and “controversies.” U.S. Const.
art. III, § 2. To satisfy the case or controversy requirement, a plaintiff must suffer an
actual injury that can be remedied by a favorable judicial decision. Iron Arrow Honor Society v.
Heckler, 464 U.S. 67 (1983). Although these doctrines are related, they have different
requirements. Sullivan v. Benningfield, 920 F.3d 401, 407 (6th Cir. 2019). Whether the parties
have standing is determined at the time the complaint in a lawsuit is filed, whereas the mootness
doctrine requires a live dispute at the time the federal court decides the case. Id. The test to
determine whether a claim is moot is “whether the relief sought would, if granted, make a
difference to the legal interests of the parties.” Saleh v. Barr, 801 F. App’x 384, 394 (6th Cir.
2020) (quoting Bowman v. Corr. Corp. of Am., 350 F.3d 537, 550 (6th Cir. 2003)). Federal
courts have discretion to address jurisdictional issues in any order and can choose to address the
“‘eas[y]’ rather than the more ‘difficult’ jurisdictional issue.” In re: 2016 Primary Election,
836 F.3d 584, 587 (6th Cir. 2016) (internal quotation marks omitted). In this case, the mootness
issue is the easier one to resolve.

Plaintiffs concede that they no longer require universal masking to safely access their
schools. Their claims are moot because this Court’s order would not affect their legal interests
and a decision in this case would have no practical effect. Moreover, the case as a whole is moot
 No. 22-5004 R. K., et al. v. Lee, et al. Page 10

since Plaintiffs acknowledge that they do not “reasonably anticipate” facing the same risks they
did when the suit was filed. See Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th Cir. 2022)
(noting that the case as a whole is moot when there is not a fair prospect of the recurrence of
challenged conduct); Ohio v. United States Env’t Prot. Agency, 969 F.3d 306, 310 (6th Cir.
2020) (noting that to avoid finding of mootness, challenged “conduct must be ‘reasonably’ likely
to recur, mean[ing] that there must be a fair prospect that the conduct will recur in the
foreseeable future”).

The majority argues that dismissing the case on mootness grounds would leave a
jurisdictionally flawed case in the district court.1 This is not so. If a case is moot, the judgment
below “must be vacated and the case remanded with instructions to dismiss.” Memphis A. Philip
Randolph Inst. v. Hargett, 2 F.4th 548, 558 (6th Cir. 2021) (quoting McPherson v. Mich. High
Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc)).

Dismissing the case on mootness grounds is the better resolution of this case since
Plaintiffs have presented evidence indicating that they continue to have standing to pursue their
claims and because a resolution of this case on those grounds would better comport with this
Court’s prior decision in this case. Earlier this year, a different panel of this Court denied
Defendants’ motion to stay the district court’s injunction, determining that Plaintiffs showed a
substantial likelihood of standing. See R.K. v. Lee, No. 22-5004, ECF No. 23 (6th Cir. May 10,
2022).

To establish standing, a plaintiff must show that they have: (1) suffered an injury or a
threatened injury; (2) that the injury is fairly traceable to the defendants; and (3) that a ruling in
favor of the plaintiff will redress that injury. See CHKRS, LLC v. City of Dublin, 984 F.3d 483,
488 (6th Cir. 2021) (quoting Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 860 (6th Cir.
2020)); Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) (citing Valley Forge

1
There is a distinction between mootness as to a preliminary injunction appeal and mootness as to the case
as a whole. See Resurrection Sch. v. Hertel, 35 F.4th 524, 528 (6th Cir. 2022) (noting that plaintiffs’ appeal of
decision denying their motion for preliminary injunction was moot once the state rescinded challenged mask
mandate). In some instances, an appeal of a preliminary injunction will be moot but the case can proceed on the
merits. That distinction does not apply in this case since Plaintiffs argue that the unique risk previously posed to
them by the COVID-19 variants no longer exists. Because any decision given by this Court will have no “practical
effect” on the Plaintiffs’ rights, the case as a whole is moot.
 No. 22-5004 R. K., et al. v. Lee, et al. Page 11

Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472
(1982)). “When assessing standing, courts look only to ‘the facts existing when the complaint is
filed.’” Barber v. Charter Twp. of Springfield, Mich., 31 F.4th 382, 390 (6th Cir. 2022) (quoting
Lujan v. Defs. of Wildlife, 504 U.S. 555, 569 n.4 (1992)).

Plaintiffs met these requirements. In their complaint, Plaintiffs alleged a concrete and
particularized injury: the Tennessee statute infringes on their rights by preventing them from
seeking and securing individualized, reasonable accommodations in light of the COVID-19
pandemic, including, but not limited to, masking. See Clapper v. Amnesty Int’l USA, 568 U.S.
398, 409 (2013). As Plaintiffs put it, they need not “await falling ill or dying because ‘[s]tanding
can derive from imminent, rather than actual injury . . . .’” (Appellees’ Br. 30 (quoting R.K. v.
Lee I, 568 F. Supp. 3d 895, 899 (M.D. Tenn. 2021) (quoting Davis v. FEC, 554 U.S. 724, 734
(2008)).) The Supreme Court has made that much clear; indeed, “a person exposed to a risk of
future harm may pursue forward-looking, injunctive relief to prevent the harm from occurring, at
least so long as the risk of harm is sufficiently imminent and substantial.” TransUnion LLC v.
Ramirez, 141 S. Ct. 2190, 2210 (2021) (emphasis added).

The record is replete with evidence showing the imminent and substantial nature of the
risk in this case. The statutory provisions at issue remove school districts’ “ability to determine
what is reasonable for its schools and students, and what is an appropriate accommodation under
the ADA, given the local COVID-19 rates and its impact on a particular community.” (Mem.
Op., R. 45, Page ID # 1133.) The text of the statute makes clear that if it were to go into effect,
there is only a single, one-size-fits-all accommodation available to disabled children: the
requirement that other individuals within six feet of the students wear masks, and only if those
individuals are within six feet of the accommodated student for more than fifteen minutes. See
Tenn. Code Ann. § 14-2-104(d)(2). The lead opinion in this case notes that the district court’s
findings fail to explain why this accommodation is insufficient, ignoring the district court’s
express findings of fact that masking is effective for preventing the spread of COVID-19, and
that “[f]or students with disabilities, six feet may be too short, and even ten minutes may be too
long.” (Mem. Op., R. 45, Page ID #1113, 1124 (citing testimony of expert witnesses)).
 No. 22-5004 R. K., et al. v. Lee, et al. Page 12

The lead opinion also argues that the risk of harm to Plaintiffs from enforcement of the
statute is too attenuated because the statute focuses on circumscribing schools’ ability to mandate
masking, and not any individuals’ ability to wear a mask themselves. The fact that the statute is
directed at schools’ ability to impose mask mandates says nothing about the increased risk of
exposure if Plaintiffs are not able to request an accommodation tailored to the specific risk they
face. And the fact that Plaintiffs’ injury is indirect is not fatal to their claim. See Parsons v. U.S.
Dep’t of Just., 801 F.3d 701, 713 (6th Cir. 2015) (noting that “the fact that an injury is indirect
does not destroy standing as a matter of course”). Requesting universal masking as a reasonable
accommodation would not be an option at all under this scheme, and the only mechanism by
which schools could mandate masks would require: (1) the Governor’s declaration of a COVID-
19 state of emergency; and (2) high local case counts. Tenn. Code Ann. §§ 14-1-101 (20), 14-2-
104(a)(2). Once in effect, the statute would immediately strip disabled schoolchildren and their
parents of their rights to engage with their schools and districts to determine reasonable
accommodations, exposing them to COVID-19 and serious illness if they decide to remain in
school.

Second, Plaintiffs’ alleged injury is also clearly traceable to Defendants. The causation
requirement in standing “is not focused on whether the defendant ‘caused’ the plaintiff’s injury
in the liability sense,” but whether the alleged injury “fairly can be traced to the challenged
action of the defendant” and not a third party. Wuliger v. Manufacturers Life Ins. Co., 567 F.3d
787, 796 (6th Cir. 2009) (determining that causation element of standing was met in the
plaintiff’s suit for rescission where the plaintiff alleged that insurance company issued and
collected premiums on insurance policy that was fraudulently procured, even though insurance
company played no role in fraudulent procurement). In this case, Defendants do have a role in
enforcing the statute barring schools from issuing universal mask mandates.2 The Governor has

2
Plaintiffs also argued that another part of the statute denies schools the authority to require infected
individuals to quarantine. See Tenn. Code Ann. § 14-4-101. Defendants dispute this characterization of the statute
and argue that pursuant to the statute, schools are permitted to quarantine individuals who test positive for COVID-
19. The statute gives the Commissioner of Health authority to determine quarantine guidelines. Tenn. Code Ann.
§ 14-4-101(a)–(b). The district court enjoined this section of the statute “to the extent that it prohibits local health
officials and schools from making quarantining decisions as they relate to public schools.” R.K. by and through J.K.
v. Lee, 575 F. Supp. 3d 957, 993 (M.D. Tenn. 2021). On appeal, Defendants note that the Tennessee Commissioner
of Health promulgated Emergency Rule No. 1200-14-04.09(4) (“emergency rule”), which clarifies that schools and
 No. 22-5004 R. K., et al. v. Lee, et al. Page 13

the sole authority to declare a state of emergency before any local school-wide masking
requirement can be put into effect. See Tenn. Code Ann. §§ 14-4-101(20), 14-2-104(a)(2).
Similarly, the Commissioner of Education may withhold state funds from local schools that
violate the statute’s mask mandate proscription. See Tenn. Code Ann. §§ 14-4-101(a)–(b), 14-2-
104(e).

The lead opinion cites this Court’s decision in Universal Life Church Monastery
Storehouse v. Nabors, 35 F.4th 1021, 1031 (6th Cir. 2022) for the proposition that a governor’s
obligation to ensure that laws are faithfully executed does not confer standing on plaintiffs
seeking to challenge a statute. In that case, however, the plaintiffs did not allege that the
governor had any role to play in their injury or in the challenged statute prohibiting online-
ordained ministers from solemnizing marriage rites. By contrast, in this case, the Governor
serves as one of the gatekeepers of the accommodation that Plaintiffs seek.

Third and finally, Plaintiffs have shown that a ruling in their favor would redress their
injury. Defendants contend that the “authority to deny or grant masking to Plaintiffs as an
accommodation . . . resides in nonparties––i.e., local schools and their principals . . . .” and this
precludes a finding of redressability “[b]ecause such third-party conduct is the deciding factor.”
(Appellant’s Br. at 27–28 (citing Lujan, 504 U.S. at 569).) This argument is misleading. To be
sure, under the statute, local schools have the authority to grant the single, one-size-fits-all
“reasonable accommodation” that was carved out by the state legislature: a six-foot bubble that
requires other students to wear masks if they are within the bubble for more than fifteen minutes.
See Tenn. Code Ann. § 14-2-104(d)(2). But the narrow and prescribed nature of § 14-2-
104(d)(2) sets out the statute’s discriminatory enforcement problem, rather than a pathway out of
litigation on justiciability grounds. Plaintiffs are denied the opportunity to collaborate with their
schools to seek out accommodations that are different from the one set forth in the statute and
face the choice of risking their health or being deprived of an in-person education. Indeed,

local health officials may make quarantining decisions “as they relate to schools.” (Appellants’ Br. at 8–9).
Accordingly, since the district court’s injunction only applies if the statute prevents schools from making
quarantining decisions, and Defendants concede that it does not, the appeal of the district court’s order granting the
injunction is moot. This is because any decision issued by this Court with respect to that provision would make no
“difference to the legal interests of the parties.” Saleh v. Barr, 801 F. App’x 384, 394 (6th Cir. 2020) (quoting
Bowman v. Corr. Corp. of Am., 350 F.3d 537, 550 (6th Cir. 2003)).
 No. 22-5004 R. K., et al. v. Lee, et al. Page 14

because the Governor’s state of emergency declaration is a necessary condition for the
accommodation that Plaintiffs seek, a “favorable court decision is likely to remedy the alleged
violation” in this case since enjoining the statute would permit the Plaintiffs to seek
accommodations that differ from the narrow accommodation specified in the statute. Coyne,
183 F.3d at 496; see also Tenn. Code Ann. §§ 14-2-104(a)(2), 14-1-101(20)(A), (B).

The district court did not err when it granted the motion for preliminary injunction, since
the Plaintiffs had standing to bring their claims. Nonetheless, due to changed circumstances, the
case as a whole has become moot. Accordingly, the injunction must be dissolved and the case
dismissed.