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.

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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 sc