EducationJudicialTexas’ Ban on School Mask Mandates to Remain During Lawsuit Appeal at Fifth Circuit

"The binary choice envisioned by the district court — either stay home or catch COVID-19 — is a false one," the panel wrote.
December 2, 2021
Though COVID-19 infection rates in schools are dropping, litigation over school mask mandates may rise to the Supreme Court.

Last week, the Fifth Circuit Court of Appeals momentarily restored Texas’ ban on school mask mandates. Now, the court has agreed to keep the prohibition in effect while it considers the case, a lawsuit between the state and the advocacy group Disability Rights Texas.

The group, suing on behalf of several children with disabilities or fragile immune systems, claims that Governor Greg Abbott’s prohibition on mask mandates puts these children at higher risk of harm from COVID-19, thus hindering their right to public school access.

Disability Rights Texas initially won at district court when federal judge Lee Yeakel granted their request to enjoin Abbott’s executive order GA-38, thereby letting schools require masks.

Texas appealed the case to the Fifth Circuit, which restored Abbott’s mask mandate ban on November 24, granting the state’s request for a temporary administrative stay with a one-page order.

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The court then issued a second order on Wednesday granting the state’s request for a stay pending appeal, shoring up the first order. While this most recent order does not change the fact that school mask mandates are still halted in Texas, it is a crucial step in the legal process,  lengthening the life of the mask mandate ban while the court considers the appeal.

Although the Fifth Circuit is far from a final judgment, the 16-page order calls the district judge’s ruling “likely erroneous.”

The judges signaled skepticism for the legal standing of Disability Rights Texas, testing their claim that Abbott’s executive order directly blocks the path to these children’s education.

“Granted, plaintiffs may well allege particularized harm given that each of them alleges a disability that leaves them particularly vulnerable during the pandemic. But they likely falter in showing any concrete, or actual or imminent, injury as a result of the enforcement of GA-38,” the order reads.

“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.”

Furthermore, the judges claim the plaintiffs’ own legal argument requires them to seek accommodations through other avenues before going to court.

The plaintiffs argued that Abbott’s prohibition on mask mandates violated federal law requiring accommodations for disabled children in public school. They also successfully claimed that the American Rescue Plan Act (ARPA), a federal COVID-19 relief package, authorizes school districts that take the money to set their own health rules in line with federal guidance.

The Fifth Circuit judges disputed both these claims.

Agreeing with Paxton’s argument, the court wrote that the same federal law requiring special education for disabled students also requires their guardians to pursue accommodation with school leadership before filing a lawsuit.

“Other means exist to control the spread of COVID-19 in school settings like vaccination, social distancing, plexiglass, and voluntary mask wearing. Plaintiffs are not entitled to their preferred accommodation under the [Americans With Disabilities Act] and Rehabilitation Act if other reasonable accommodations are available,” the order reads.

Moreover, the court did not interpret ARPA to interfere with Abbott’s order. Instead, the judges read the provision in ARPA that requires schools to prepare a COVID-19 response plan as a simple transparency measure.

“Rather than requiring local educational agencies to adopt universal masking, the American Rescue Plan Act requires local educational agencies to communicate with the public regarding what requirements, if any, it maintains regarding masking, and why. GA-38 does not interfere with this responsibility, other than removing localized mask mandates from the range of policies and practices for safe operation of schools, so it was likely error for the district court to conclude that GA-38 was preempted on this ground.”

If the Fifth Circuit ultimately sides with the State of Texas, as it seems poised to do, the plaintiffs may petition the United States Supreme Court to take up the case.

The federal government opened an investigation into the Texas public school system in September over the possibility that Abbott’s mask mandate ban amounted to discrimination against disabled students.


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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.