Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—M.D. Tenn.: Lack of standing dooms teachers’ constitutional challenge to Tennessee’s ‘Prohibited Concepts Ban‘, (Apr 22, 2025)

By Marjorie Johnson, J.D.

Reaching the conclusion “uneasily,” the court stated that until the law is properly challenged, “every teacher in Tennessee will labor under the burden of wondering what they are and are not allowed to say in class.”

Five licensed teachers and the Tennessee Education (TEA) lacked standing to bring a Section 1983 lawsuit challenging the so-called “Prohibited Concepts Ban” contained within a Tennessee law and its implementing regulations as unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment. “The non-existence of any history of past enforcement (despite the law’s having passed nearly four years ago and the filing of numerous complaints at the local level), the lack of warning letters, and the absence of any strong statutory attributes making enforcement particularly easy,” led the court to conclude that the individual plaintiffs lacked standing, and that therefore the TEA also lacked associational standing (Tennessee Education Association v. Reynolds, No. 3:23-cv-00751 (M.D. Tenn. Apr. 17, 2025)).

Prohibited Concepts Ban. The challenged Prohibited Concepts Ban prohibits the K-12 public schools and their teachers from including or promoting 14 prohibited concepts dealing with race, gender, ethnicity, and other subjects. The court noted that the Ban drew much of its language from an executive order issued by President Donald Trump during his first term, titled “Combating Race and Sex Stereotyping.” After President Biden revoked that order, numerous states in addition to Tennessee passed similar bans.

Complaint process. An “eligible complainant” who can file a complaint for violation of the Ban includes any current student, parent of a current student, or current employee of the local education agency (LEA) or public charter school in which the Ban was allegedly violated. Within sixty days of receiving a timely complaint, the LEA or public charter school must investigate to determine whether the complaint is substantiated, issue a written opinion, and communicate that decision to the parties.

The teacher or complainant may appeal to the TDOE, which then prepares a report for the Commissioner of the Tennessee Department of Education (TDOE). The Commissioner then determines whether to uphold or reverse the decision. A teacher who is found to have violated the Ban may face disciplinary action including a formal reprimand or suspension and revocation of licenses and certificates.

Lawsuit. The plaintiffs brought this lawsuit against the Commissioner of the TDOE and the members of the Tennessee State Board of Education (SBOE), who were the officials tasked with implementing the challenged law or imposing discipline for violations thereof. While none of the plaintiff-teachers had been the subject of a complaint for an alleged violation of the Ban, they claimed the law was unconstitutionally vague since it fails to provide fair notice of what it requires or prohibits and allows for arbitrary and discriminatory enforcement.

Motion to dismiss. The court previously denied the defendants’ motion to dismiss, finding amongst other things that at the pleading stage the plaintiffs plausibly alleged they had standing to bring their claim. However, the procedural posture of the case is different, noted the court. In addition, an intervening Sixth Circuit opinion refined the requirements for standing in the pre-enforcement context.

McKay factors. In Christian Healthcare Centers, 117 F.4th 826 (2024), the Sixth Circuit affirmed that the so-called “McKay factors” governed the standing inquiry in the pre-enforcement context. These factors include: (1) “a history of past enforcement against the plaintiffs or others”; (2) “enforcement warning letters sent to the plaintiffs regarding their specific conduct”; (3) “an attribute of the challenged statute that makes enforcement easier or more likely, such as a provision allowing any member of the public to initiate an enforcement action”; and (4) the “defendant’s refusal to disavow enforcement of the challenged statute against a particular plaintiff.”

History of past enforcement. Significantly here, while the Ban had been in place for nearly four years and the plaintiffs established that numerous citizen complaints had been filed, there had been no findings at the local level that any teacher had violated the Ban (and the three appeals were brought by seemingly dissatisfied complainants). “Citizen complaints are simply not the equivalent of enforcement by the defendants,” and these complaints, standing alone, were insufficient at the summary judgment stage to establish a history of past enforcement. While “plaintiffs’ subjective fears of enforcement are not unreasonable,” particularly “given the national and local political climate and the language of the statute,” standing also required that they show a likelihood that the defendants’ actions in response to those complaints would cause a cognizable injury. On that issue, the defendants have had “little or no opportunity even to weigh in on the issue of how they will interpret the statute.”

Statutory attributes. Since it was undisputed that no “enforcement warning letters” have been sent, the court turned to the third McKay factor and examined whether the Ban had some attribute that “makes enforcement easier or more likely.” Under the statute and its rules, the fact that a complaint may be initiated by any current student, parent, or employee of the LEA in which the incident arose did not actually tend to make enforcement “easier or more likely” since the state won’t initiate an investigation or an enforcement action until after an investigation by local officials and a written determination leads to an appeal.

Disavowal. The fourth McKay factor, on the other hand, “leans in favor” of the teachers since the defendants didn’t provide any assurances that they would not be subject to an enforcement action in the event that an appeal concerned any one of them. But because the absence of a history of enforcement diminished the likelihood of future enforcement, the court found that the weight this factor carried was also diminished.

Weighing of the factors. Moreover, the disavowal factor did not outweigh the other factors that weighed against standing. “The non-existence of any history of past enforcement (despite the law’s having passed nearly four years ago and the filing of numerous complaints at the local level), the lack of warning letters, and the absence of any strong statutory attributes making enforcement particularly easy, considered together, lead the court to conclude that the individual plaintiffs lack standing to challenge the Ban.” And since the individual plaintiffs lacked standing, the TEA lacked associational standing.

Cannot reach merits. The court emphasized that it “reaches this conclusion uneasily,” noting that, “[e]very or nearly every concept prohibited by the Act is poorly defined in that way, set out in language that might be at home in an angered blog post or an opinion column but which, when imported into a legal code, is manifestly unworkable.” However, until the law is challenged by a plaintiff who does not lack standing, “every teacher in Tennessee will labor under the burden of wondering what they are and are not allowed to say in class.”

The case is No. 3:23-cv-00751.

Judge: Trauger, A.

Attorneys: Richard Lee Colbert (Thompson Burton PLLC) for Tennessee Education Association. Bradford Telfeyan, Office of Tennessee Attorney General, for Lizzette Gonzalez Reynolds.

Companies: Tennessee Education Association

Cases: IndividualRights StateLawClaims PublicEmployees Procedure TennesseeNews