Texas Attorney General Ken Paxton celebrated a victory in this arena yesterday when an appellate court dismissed a suit against the state’s mask mandate ban.
“The audacity of rogue superintendents across Texas openly violating state law last year was alarming. These are the community leaders that are supposed to be models for our youth to look up to, but instead they became political activists and abandoned their duties as educators,” Paxton stated.
“It is long past time for Texas educators to put aside their political agendas and focus on the crucial task of educating our Texas children.”
The case began after Governor Greg Abbott issued an executive order last May to prohibit school districts from requiring masks. Abbott later consolidated it with his various coronavirus-related orders in GA-38, the executive order cited in the case.
A group called Disability Rights Texas sued the state over GA-38 on behalf of several children at higher risk of harm from COVID-19, claiming it violated federal law requiring schools to give disabled children reasonable access to education.
The plaintiffs won at district court when a federal judge enjoined GA-38, saying it excluded disabled children from participating in public schools’ programs and services by exposing them to higher risk of harm from COVID-19.
The ban on mask mandates was already preliminarily restored by the Fifth Circuit Court of Appeals in November after the State of Texas appealed the case.
The Fifth Circuit issued an order on Monday to dismiss the lawsuit, ruling that the plaintiffs failed to show real harm that could be redressed by a favorable decision. Judges Don Willett and Andrew Oldham joined in the majority opinion, while Judge W. Eugene Davis dissented.
“According to plaintiffs and our esteemed colleague in dissent, Article III of the Constitution gives plaintiffs standing to demand court-created mask-mandate bubbles. This case involves schools. But plaintiffs’ theory, shared by the dissent, would reach every property covered by the [Americans With Disabilities Act] and Section 504,” the majority opinion reads.
“Restaurants, movie theaters, libraries, hotels, grocery stores, you name it. It would require federal courts to enforce mobile mask mandates that go where plaintiffs go and require everyone around them to wear masks. That theory of standing is equal parts sweeping and unprecedented. Today we reject it.”
At the time of the trial, two of the seven schools in the case had made masks optional; the other five required them. The judges observe in the ruling that all seven schools employed different mitigation measures other than masks — and experienced very different infection rates as well.
“The two mask-optional schools had positivity rates of 1.9 and 3.0 percent. The five schools with mask mandates measured at 0.3, 1.1, 2.3, 4.9, and 5.4 percent — higher, lower, and in between the rates from the mask-optional schools,” the court wrote.
“Moreover, plaintiffs did nothing to control for their schools’ various other efforts to reduce COVID-19 infections, and hence did nothing to prove the relative efficacy of mask mandates in the five law-violating schools.”
Although Abbott eventually chose to ban mask mandates, he initially required masks statewide and threatened fines for noncompliance.
Federal and state COVID-19 data demonstrates that children face the least risk of death from COVID-19 compared to other age groups.
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