NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0531n.06

Case No. 21-5915

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

G.S., by and through his parents and next 

friends, Brittany and Ryan Schwaigert, et al.,

Plaintiffs-Appellees

v.

GOVERNOR BILL LEE,

Defendant-Appellant.

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O R D E R

BEFORE: SILER, CLAY, and McKEAGUE, Circuit Judges. 

PER CURIAM. Governor of Tennessee Bill Lee moves for a stay pending appeal of the

district court’s order preliminarily enjoining enforcement of his Executive Order No. 84 within 

Shelby County. That executive order granted parents and guardians in Tennessee the right to opt 

their children out of any local mandate requiring masks to be worn in K–12 schools. Plaintiffs—

three children with disabilities that render them especially vulnerable to COVID-19—challenged 

enforcement of Executive Order No. 84 on grounds that it violates Title II of the Americans with 

Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA”) by foreclosing schools 

from providing a reasonable accommodation for their medical vulnerabilities: universal masking 

in K–12 schools. The district court issued a preliminary injunction ordering Defendant Shelby 
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County1to enforce its existing health order imposing a countywide K–12 school mask mandate 

without exception for Executive Order No. 84.2 See G.S. v. Lee, No. 21-cv-02552, 2021 WL 

4268285, at *14 (M.D. Tenn. Sept. 17, 2021).

During the pendency of this motion, but after the parties submitted briefing, Governor Lee 

terminated Executive Order No. 84 after he signed Senate Bill 9014 into law on November 12, 

2021. Tennessee’s new law allows schools to enforce mask mandates only under limited “severe 

conditions” and imposes other substantial conditions schools must meet in order to enforce a mask 

mandate. Tenn. Code Ann. §§ 14-1-101(20), 14-2-104. The law also provides a process for

students with disabilities to obtain a reasonable accommodation. Id. § 14-2-104(d)(1)–(2)

Also on November 12, 2021, upon motion of Defendant Shelby County in anticipation the 

Governor signing the bill into law, the district court held an emergency hearing to clarify the scope 

of its preliminary injunction. After the hearing, the district court entered an order clarifying that 

Shelby County must continue to enforce its health orders “without exception for any rule or 

regulation that purportedly restrains its ability to provide reasonable accommodations to schools 

subject to” Shelby County’s health orders. R. 87 at 3. 

That same day, plaintiffs in the Middle District of Tennessee filed suit and a motion for a 

preliminary injunction against the Governor and the Commissioner of the Tennessee Department 

of Education seeking to enjoin enforcement of Tenn. Code Ann. § 14-2-104. R.K. v. Lee, No. 

3:21-cv-853 (M.D. Tenn.). The district court in that case ordered the parties to “maintain the status 

quo as it pertains to students with disabilities and their federally guaranteed rights as of Thursday, 

1 Defendant Shelby County did not appeal the district court’s preliminary injunction order.

2 Both the Middle District and the Eastern District of Tennessee have also issued preliminary 

injunctions against enforcement of Executive Order No. 84 on ADA grounds. See R.K. v. Lee, No. 3:21-

CV-00725, 2021 WL 4942871, at *18 (M.D. Tenn. Oct. 22, 2021); S.B. v. Lee, --- F. Supp. 3d ----, No. 

321CV00317JRGDCP, 2021 WL 4755619, at *28 (E.D. Tenn. Oct. 12, 2021).
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November 11, 2021, prior to the effective date of Tennessee Code Annotated § 14-2-104.” Id., R. 

8 at 2. The court has since set a hearing for November 19, 2021 on the motion for a preliminary

injunction. Id., R. 16.

On the record before us, we decline to stay the district court’s preliminary injunction. In 

deciding whether to grant a stay, we must “review the record that was before the district court at 

the time the preliminary injunction was entered.” Wilson v. Williams, 961 F.3d 829, 833 (6th Cir. 

2020) (citation omitted). We consider “(1) the likelihood that the party seeking the stay will prevail 

on the merits; (2) the likelihood that the moving party will be irreparably harmed; (3) the prospect 

that others will be harmed by the stay; and (4) the public interest in the stay.” Crookston v. 

Johnson, 841 F.3d 396, 398 (6th Cir. 2016) (citing Coal. to Def. Affirmative Action v. Granholm, 

473 F.3d 237, 244 (6th Cir. 2006)). No single factor is necessarily dispositive, but the first factor—

the likelihood of success—in many instances will be the “determinative factor” in our analysis. 

Thompson v. DeWine, 959 F.3d 804, 807, 812 (6th Cir. 2020) (per curiam) (quoting Obama for 

Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)).

Our review of the district court’s decision is “highly deferential.” DV Diamond Club of 

Flint, LLC v. Small Bus. Admin., 960 F.3d 743, 746 (6th Cir. 2020) (citation omitted). We review 

the district court’s legal conclusions de novo and its findings of fact for clear error. City of Pontiac 

Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (per curiam) 

(citation omitted). “We review ‘for abuse of discretion, however, the district court’s ultimate 

determination as to whether the four preliminary injunction factors weigh in favor of granting or 

denying preliminary injunctive relief.’” Id. (citation omitted).

Starting with the first prong, the Governor has not shown a likelihood of success on the 

merits. Title II of the ADA prohibits disabled individuals from being “excluded from participation 
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in” or “denied the benefits of the services programs, or activities of a public entity.” 42 U.S.C. 

§ 12132. Denial of a reasonable accommodation is a cognizable claim under Title II of the ADA. 

See Marble v. Tennessee, 767 F. App’x 647, 651 (6th Cir. 2019) (citing McPherson v. Mich. High 

Sch. Athletic Ass’n, Inc., 119 F.3d 453, 460 (6th Cir. 1997)); 28 C.F.R. § 35.130(b)(7)(i). 

Plaintiffs provided ample evidence in the district court that, without reasonable 

accommodations to mitigate the risk of contracting COVID-19 while attending public school, they 

will be denied the benefits of a public education because of their disabilities. Plaintiffs also put 

forth evidence that universal mask wearing is an effective way to mitigate the spread of COVID19.

The Governor, in contrast, did not submit any evidence about the reasonableness of 

universal mask wearing or alternative reasonable accommodations. At the preliminary injunction 

hearing, the Governor called Theresa Nicholls as his only witness, the Assistant Director for 

Special Populations at the Tennessee Department of Education. Nicholls is the “most senior 

official [in] the State of Tennessee with responsibility for ensuring the rights of disabled 

students[.]” R. 53 at 1139. Nicholls testified that her office was not asked to give input on 

Executive Order No. 84 and that her office was not given any advanced notice of the executive 

order. At the time of the hearing, her office still had not issued any guidance to school districts 

regarding the Order. When asked about guidance that her office was developing, Nicholls spoke 

in vague terms about finding “creative ways” and “creative solutions” to implement the Executive 

Order while also “protecting the rights of students with disabilities.” Id. at 1136. She did not offer 

concrete alternative accommodations that schools could immediately implement, and the 

Governor did not offer evidence about how any of the accommodations proposed in his briefing 

would be effective.
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It is true, as the Governor asserts, that in employment cases under Title I of the ADA, a 

plaintiff is only entitled to a reasonable accommodation, not the plaintiff’s preferred

accommodation. See Hankins v. The Gap, Inc., 84 F.3d 797, 800 (6th Cir. 1996). The district 

court stated that masking was the “most reasonable approach.” G.S., 2021 WL 4268285, at *7.

This statement might imply that the court disregarded other reasonable accommodations proposed

by the Governor. But the record is devoid of evidence about reasonable accommodations 

alternative to mask wearing that Plaintiffs’ schools were prepared to implement following 

Executive Order No. 84.

The Governor also contends without evidence that universal mask wearing in K–12 schools 

is unreasonable because it “imposes significant burdens on third parties.” Mot. to Stay at 13. The 

Governor analogizes to cases holding that requested accommodations to make workplaces

“fragrance free” were not reasonable. In Montenez-Denman v. Slater, we held that a plaintiff’s 

requested accommodation of a “fragrance-free work environment” would be “impractical and 

virtually impossible for the [employer] to enforce[.]” 2000 WL 263279, at *2–*3 (6th Cir. Mar.

1, 2000). The record shows that the opposite is true in this case. Prior to Executive Order No. 84, 

Plaintiffs’ schools were already enforcing a universal mask mandate under Shelby County’s health 

order. The Governor has put forth no evidence showing that such a policy was impractical or 

impossible for schools to enforce. See id.

In sum, the Governor did not submit sufficient evidence to show a likelihood of success on 

the merits. There are significant arguments in favor of both sides of this case on the three 

remaining equitable factors. But under our highly deferential standard of review, we cannot say 

the district court abused its discretion in finding that the balance of these factors weighed in favor 
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of preliminary injunctive relief. See G.S., 2021 WL 4268285, at *12–*13. Thus, we decline to 

grant the Governor’s motion to stay.

The Governor’s termination of Executive Order No. 84 and the contemporaneous

enactment of Tenn. Code Ann. § 14-2-104 raise questions about whether this case is moot. The 

parties have not briefed this issue. The parties have also not briefed how § 14-2-104 affects the 

merits of Plaintiffs’ ADA and RA claims. “Under these circumstances, discretion is the better part 

of judgment when it comes to a potentially premature (and unnecessary) ruling about a moving 

target.” Maryville Baptist Church, Inc. v. Beshear, 977 F.3d 561, 566 (6th Cir. 2020) (per curiam). 

We think it best for the parties to address before the district court in the first instance whether this 

case is moot and whether the “subsequent legal developments require the district court to revisit” 

its preliminary injunction order. Id. 

For these reasons, the motion for a stay of the preliminary injunction pending appeal is 

DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk