5th Circuit Temporarily Restores Greg Abbott’s Ban on School Mask Mandates
The U.S. Court of Appeals for the 5th Circuit last week temporarily restored Texas Gov. Greg Abbott’s ban on face mask mandates in public schools, signaling that it is skeptical of the argument that his executive order violates federal laws prohibiting discrimination against people with disabilities. The decision does not bode well for that argument, which Secretary of Education Miguel Cardona has embraced, suggesting that federal COVID-19 guidelines for K–12 schools are effectively mandatory.
In response to a lawsuit by the parents of seven students with various disabilities, U.S. District Judge Lee Yeakel last month enjoined Texas from enforcing GA-38, the July 29 order in which Abbott said “no governmental entity” may “require any person to wear a face covering.” Yeakel agreed that the order unlawfully forced the students to choose between staying home or risking COVID-19 infection by attending school. The 5th Circuit imposed a stay on Yeakel’s injunction pending appeal, saying the plaintiffs lacked standing, had failed to exhaust administrative remedies, and in any case probably could not succeed in arguing that the ban on face mask mandates amounted to illegal discrimination.
Because the seven students have disabilities that make them especially vulnerable to COVID-19, Yeakel concluded, they are entitled to accommodations addressing that risk. By taking mask requirements off the table, he said, Abbott’s order ran afoul of the Rehabilitation Act, which bans discrimination against people with disabilities in federally funded programs, and the Americans With Disabilities Act (ADA), which applies more broadly to state and local governments as well as places of public accommodation.
The 5th Circuit is inclined to disagree, saying the plaintiffs “likely” failed to show an “injury in fact,” a threshold requirement for bringing their lawsuit. “Plaintiffs may well allege particularized harm given that each of them alleges a disability that leaves them particularly vulnerable during the pandemic,” the unanimous three-judge panel says. “But they likely falter in showing any concrete, or actual or imminent, injury as a result of the enforcement of GA-38.”
The plaintiffs argued that Abbott’s order effectively deprives them of in-person instruction because that would entail unacceptable risks unless students and staff are required to wear masks. “Plaintiffs have not shown that they face such an ‘either/or’ choice as a result of GA-38, and the district court’s conclusion that they do was likely erroneous,” the 5th Circuit says. “The risks of contracting COVID-19 for these plaintiffs are certainly real, but the alleged injury to plaintiffs from the enforcement of GA-38 is, at this point, much more abstract. This is so because the binary choice envisioned by the district court—either stay home or catch COVID-19—is a false one: it wholly elides the various accommodations available to the plaintiffs (e.g., distancing, voluntary masking, class spacing, plexiglass, and vaccinations) to ensure a safer learning environment, regardless of GA-38’s prohibition of local mask mandates.”
In addition to demonstrating a “concrete” injury, the plaintiffs have to show that the injury is “actual or imminent.” The appeals court notes that “[i]ncreased-risk c
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