IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE
________________________________________________________________

IN THE MATTER OF S.B., A MINOR STUDENT, )

BY AND THROUGH HIS PARENTS, )
M.B. AND L.H.; )
)
M.S., A MINOR STUDENT, )
BY AND THROUGH HER PARENT, K.P.; )
)
T.W., A MINOR STUDENT, )
BY AND THROUGH HIS PARENTS, M.W. )
J.W., AND )
)
M.K. A MINOR STUDENT, )
BY AND THROUGH HER PARENT, S.K. )
)
)
PLAINTIFFS. )
)
VS. )
) No. 3:21−cv−00317−JRG−DCP
GOVERNOR BILL LEE, in his official ) Judge Greer
capacity as GOVERNOR OF TENNESSEE, and )
KNOX COUNTY, )
)
DEFENDANTS. )

PLAINTIFFS’ MOTION & MEMORANDUM TO APPOINT

COURT MONITOR, CREATE A COMPLIANCE PLAN, AND
FOR KNOX COUNTY TO SHOW CAUSE WHY CONTEMPT IS
NOT APPROPRIATE

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 COME THE PLAINTIFFS, S.B., a minor student, and M.B. and L.H., the student’s

parents/guardians, for their minor son; M.S., a minor student, and K.P., the student’s

parent/guardian, for her minor daughter; T.W., a minor student, and M.W. and J.W., the

student’s parent/guardian, for their minor son; and M.K. a minor student, and S.K, the student’s

parent/guardian, for her minor daughter, and make this request for a Court monitor under Fed. R.

Civ. P. 53(a)(1)(C), or a Compliance Plan, and/or for Knox County to show cause why contempt

is not appropriate.

I. STANDARD FOR COURT MONITOR AND CONTEMPT

Under Fed. R. Civ. P. 53(a)(1)(c), the Court may appoint a monitor to “address pretrial

and posttrial matters that cannot be effectively and timely addressed by an available district judge

or magistrate judge of the district.” Fed. R. Civ. P. 53(a)(1)(c); Howe v. City of Akron, 17 F. Supp.

3d 690, 691 (N.D. Ohio 2014).

As for the contempt standard, Knox County is under a court-ordered mask mandate.

Absent good faith compliance, this Court already has stated that Knox County may face civil

contempt:

The Court reminds the Knox County Board of Education that its school system is
no longer under a voluntary mask mandate; rather, it is under a court-
ordered mask mandate. The record evidence supports the need for—and the Court
ordered—a universal mask mandate, and the Court fully expects its mask mandate
to be exactly that: universal, to every possible extent, with “very few” medical
exemptions, as Dr. Yaun said. [Hr'g Tr. at 77:5-7]. If the Knox County Board of
Education does not comply in good faith with this Order, the Court may impose
considerable sanctions against it for civil contempt.

S.B. v. Lee, 2021 U.S. Dist. LEXIS 195663, at *20-21 (E.D. Tenn. Oct. 12, 2021)

While the contempt power should not be used lightly, the power “‘is a necessary
and integral part of the independence of the judiciary, and is absolutely essential to
the performance of the duties imposed’” by law. Id. (quoting Gompers v. Bucks

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 Stove & Range Co., 221 U.S. 418, 450, 31 S. Ct. 492, 55 L. Ed. 797 (1911)). Contempt
proceedings are used to “enforce the message that court orders and judgments are
to be complied with in a prompt manner.” Id. In civil contempt proceedings,
judicial sanctions may be imposed for either or both of two purposes: to coerce the
defendant into compliance with the Court's order and to compensate the movant
for the losses sustained.

S. Elec. Ret. Fund v. Gibson, 2006 U.S. Dist. LEXIS 61253, *9 (M.D. Tenn. Aug. 28, 2006).

II. THE PARTIES’ EFFORTS WITHOUT A MONITOR

On January 5, 2022, Plaintiffs’ legal counsel wrote a letter of concern to Knox County’s

legal counsel setting forth pictures illustrating broad-based non-compliance with the mask mandate

in the Knox County schools. (Exhibit A, Plaintiffs’ Letter). 1 The pictures were wide-ranging

and included a mask-less board member, principals, teachers, and a hoard of unmasked students.

They included:

• An event at a KCS school of largely mask-less parents.

• Three sporting events of mask-less students in the stands.

• Unmasked principal speaking to unmasked students;

• Knox County Board member 2 and principal unmasked at a school event;

• A teacher refusing to enforce masking in the classroom, inviting the judge to his

classroom instead;

1 While these pictures broadly demonstrated non-compliance, they are “just some
examples” of countless other photographs. The pictures have been filed under seal to protect the
identity of the minor students. Plaintiffs have contemporaneously submitted a Motion for
Permission to File Exhibits Under Seal.
2
This Board member has publicly challenged the injunction itself on separation of powers
grounds. (Exhibit B, Henderson’s Post) (“Judge Greer’s mask mandate is a clear case of judicial
overreach. The school board is responsible for the governance of Knox County Schools – not the
federal government.”). While she is entitled to her opinion, she is not entitled to violate the mask
mandate.
3

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 • Multiple unmasked bus drivers;

• Social media attempts to identify the Plaintiff-families and stalk them outside of schools

and taking their pictures; and

• Students wearing mesh and lace masks.

(Ex. A – Photos attached under Seal).

Plaintiffs’ letter was neither threatening nor intemperate, but rather requested good faith

cooperation with Knox County in enforcing the Court’s mask mandate. It specifically inquired who

within Knox County is “charged with monitoring and enforcing the preliminary injunction in all

of the schools.” (Id. at p. 2). Plaintiffs set forth how they hoped to “avoid a court-monitor or

court-ordered sanction.” (Id.) (emphasis added)

On February 3, 2022, on letterhead of “David L. Buuck Knox County Law Director,”

Defendant’s counsel responded. 3 (Exhibit C, Knox County Response). 4 The response

acknowledged there was not universal compliance in schools. Id. at p. 1. It offered rebuttal

thoughts on Plaintiffs’ pictures: 1. Some but not all may have exemptions; 2. bus drivers are not

Knox County employees; 3. KCBOE cannot control parents under First Amendment; 4. picture

examples from social media are hearsay; 5. communications from the superintendent rightly

include litigation updates; 6. KCS had difficulty enforcing the mask mandate in the early weeks; 7.

3 The response was timely to Plaintiffs’ requested date because January 30, 2022 fell on a
Sunday and Plaintiffs granted a few additional days to Defendant to compile its response as
Defendant requested.

4
The pictures attached to Knox County’s Response have been filed under seal to protect the
identity of the minor students. Plaintiffs have contemporaneously submitted a Motion for
Permission to File Exhibits Under Seal.

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 compliance varies by schools with some being better than others; and 8. at after-hour events there

is the added difficulty of enforcement due to “limited staff.” (Id. at pp. 2-3).

To illustrate what, if anything, Knox County is doing by way of enforcement and

monitoring, Knox County claimed that the Law Director had an employee “check on mask

compliance.” (Id. at p. 2). This employee was sent “to nine schools from across the district to

check on mask compliance.” (Id.) (emphasis added). Per Knox County, “these visits were not

scheduled with the individual schools ahead of time, and our office provided minimal notice of the

visits to the schools themselves.” (Id. at 2). The result of that check, and the photographs, were

submitted to Plaintiffs to show “substantial compliance.”

Other than the employee within the Law Director’s office, the response stated that

principals are charged with “ensuring compliance with the law,” though there is not a “mask czar”

or something similar. (Id. at p. 3). Knox County would not comment about any counseling,

reprimands, or discipline for persons failing or refusing to mask. (Id. at p-4). It said its

Superintendent would send a communication about compliance and proper wearing of masking.

(Id.) 5

III. A COURT-APPOINTED MONITOR OR COMPLIANCE PLAN IS NECESSARY TO ENFORCE

THE INJUNCTION AND PREVENT DECEPTION

In addition to their lived experiences and the photographs submitted to Knox County,

Plaintiffs show that the single monitoring identified by Knox County—the “check on mask

5 One such further communication from Superintendent Thomas was sent yesterday
reminding principals that masks must effectively cover the nose and mouth and that lace and mesh
masks were not effective. This correspondence was provided to the Plaintiffs today and it is
attached as Exhibit D.
5

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 compliance” by an employee in the Law Director’s office—was purposefully staged to deceive the

Plaintiffs with a false and defensive impression of mask compliance.

On January 25, 2022, after receiving Plaintiffs’ request for cooperative enforcement, Knox

County’s Law department did advise a number of Knox County principals that an employee, Amy

Walker, would be taking pictures at their schools on a date certain—January 26, 2020. (Exhibit

E, Gary Dupler Email—Sealed). 6 The purpose was “[t]o support our defense of the ‘mask case’

and note KCS enforcement of mask usage.” (Id.)

On that day, January 26, 2022, Walker “would be taking pictures of signage and staff with

masks.” (Id.) (emphasis added). The principals were instructed to direct Walker to the signs and

to the “best places to take some effective pictures.” (Id.) (emphasis added). Far from truly checking

on mask compliance, Walker was gathering photographs for a defensive purpose to give the

impression of mask usage, mask compliance, and good signage.

The principals, in turn, advised their staffs of the contrived photo-ops. At Knox County

Central High School, the principal communicated that masking “has resurfaced as a result of the

litigants taking pictures of staff and students at indoor school events unmasked.” (Exhibit F,

6
It is noted here that the subject line of the Knox County Law Department’s email states
“Pictures for the ADA mask litigation (atty/client privilege).” Plaintiffs sharply disagree this is a
privileged communication, or alternatively, would assert that such privilege has been waived. This
was not a legal communication to the superintendent or school board members. Nor is there any
indication that these principals or the photographer, Ms. Walker, were seeking “individual legal
advice” from the municipality’s lawyers. Ross v. City of Memphis, 423 F.3d 596, 605 (6th Cir. 2005).
Indeed, the email is not even giving confidential legal advice. Nor is the email seeking to keep secret
the information. Actually, the opposite is the case—the principals were to engage someone to
assist Ms. Walker with the staged photo-op. Although any claim of “privilege” (which does not
exist) would have been waived by its distribution to Plaintiffs and the summary distributed to all
staff by Dr. Brown, the principal, Plaintiffs have, in an absolute abundance of caution, filed the
Exhibit itself under seal in the event Knox County may argue against the actual email becoming
public record.

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 Brown Email). 7 As if to blame the Plaintiffs, he falsely stated that complaints “had been filed with

the judge.” (Id.) They had not been. The principal then gave staff the date that Walker would be

at the school and, reinforcing the faked purpose, he summarized that it was to “catch staff

following the judge’s order.” (Id.).

In response to the principal’s email, one conscientious Knox County teacher predicted this

would be a “disaster tomorrow.” (Exhibit G, Teacher Response to Brown Email). She

referenced parents needing even further warning through a telephone call and that students must

be warned on the loudspeaker. (Id.). And that merely having a mask was insufficient. (Id.) (“Are

we still just looking at ‘wearing’ a mask, or do we care HOW they are wearing it? As you know, I

think we should be looking at wearing them correctly.”)

IV. THE NEED FOR AN INDEPENDENT MONITOR AND TO SHOW CAUSE

Plaintiffs had truly hoped that a joint relationship of enforcement would be possible.

However, that has proved impossible because there is a marked difference between cooperative

enforcement versus creating a staged impression for defense of litigation. Knox County’s letter does

not show any proactive steps for monitoring other than the “check on mask compliance” that

amounts to propaganda.

A. Monitor or Compliance Plan

Plaintiffs’ original concerns are well taken, evidenced by the sampling of representative

photographs. Had mask compliance truly been effective, there would have been no need for

advance warning of photographs, or the instructions to find signage and mask compliance—in

7 Exhibits F and G have been redacted to protect the identity of the teacher, a non-party to
this action, in this public filing.
7

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 order to “catch” compliance. As the evidence shows, the “mask compliance check” by Ms.

Walker on January 26, 2022, the only monitoring even known, was undertaken to create a defensive,

partisan impression of one-sided compliance.

For the reasons set forth in Plaintiffs’ advisory letter to Knox County, including the

widespread abuse of the mask mandate, along with the purposefully false feedback received from

Knox County, Plaintiffs are left with no choice but to respectfully request the appointment of a

neutral monitor. The monitor, Plaintiffs would propose, would have authority to make

unannounced visits to any Knox County school and extracurricular activities and make regular

reports to the parties and to the Court about compliance and non-compliance with the injunction.

Alternatively to a Court monitor, Plaintiffs would be agreeable to Knox County submitting

a proposed Compliance Plan to the Court identifying Knox County monitors for each school, a

process that includes random visits, a complaint procedure for parents and students, training

necessary for proper masking and mask wearing, and a system of discipline consistent with what

Knox County enacted previously (e.g. two warnings, then suspension). Plaintiffs would then ask

for a period to provide comments with additions or alternatives. Having this local input, the Court

could then issue an appropriate compliance order.

As a second alternative, Plaintiffs would also be agreeable to establishing a three-person

“Compliance Committee,” with members being chosen by Plaintiffs, by Knox County, and the

third member being agreed upon jointly. That committee, too, would interact with Knox County

monitors identified at each school, would make unannounced observations themselves, would

receive complaints, and would make reports to the Court about compliance and areas of

improvement.

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 B. Civil Contempt

That leaves civil contempt. Knox County deliberately attempted to deceive the Plaintiffs

about the effectiveness of its compliance with the injunction. While Plaintiffs wish it were not true,

the communications speak for themselves. In terms of the Court’s previous admonishment of

good faith compliance to avoid contempt, S.B. v. Lee, 2021 U.S. Dist. LEXIS 195663, at *20-21,

Plaintiffs request a show-cause opportunity for Knox County to illustrate why findings of civil

contempt are not necessary. The Court has been firm in its Order and expectations. See id.

To this point, while Plaintiffs have tried in earnest to work directly with Defendant to

ensure compliance with this Court’s Order, Knox County has responded with a “check on mask

compliance” that was plainly designed to dupe the Plaintiffs about adherence to the injunction.8

This illustrates that there is no genuine monitoring or enforcement plan in place even though

COVID infections continue to skyrocket in Knox County. Civil contempt—which may also

introduce a monitor or fines—becomes necessary “to enforce the message that court orders and

judgment are to be complied with in a prompt manner.” S. Elec. Ret. Fund, 2006 U.S. Dist. LEXIS

61253, *9 (M.D. Tenn. Aug. 28, 2006). Knox County should show cause for preventing truth

discernment.

For all these reasons, Plaintiffs request a Monitor and/or a Compliance Plan, and for Knox

County to show cause on the issue of contempt.

8
Deception comes in many forms: giving false information, providing incomplete
information, or manipulating scenery through selective images.
9

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 Respectfully submitted,

GILBERT LAW, PLC

/s Justin S. Gilbert___________________
Justin S. Gilbert (TN Bar No. 017079)
100 W. Martin Luther King Blvd, Suite 501
Chattanooga, TN 37402
Telephone: 423.756.8203
Facsimile: 423.756.2233
justin@schoolandworklaw.com
&

THE SALONUS FIRM, PLC

/s Jessica F. Salonus_________________
JESSICA F. SALONUS (28158)
139 Stonebridge Boulevard
Jackson, Tennessee 38305
Telephone: (731) 300-0970
Facsimile: 731.256.5711
jsalonus@salonusfirm.com

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I certify that this Motion was served upon all counsel of record for the Defendants,
including David Sanders and Amanda Morse for KCBOE and Reid Smith for Governor Lee,
through the Court’s ECF filing system on February 4, 2022.

/s Jessica F. Salonus
/s Justin S. Gilbert

10

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