(CN) — Texas public school officials cannot force students and staff to wear masks and must comply with the governor’s edict barring mask mandates, a Fifth Circuit panel ruled late Wednesday.
The parents of seven young children who suffer from ailments ranging from asthma to cerebral palsy sued Texas Governor Greg Abbott, the Texas Education Agency and its Commissioner Mike Morath in August over GA-38, an executive order the Republican governor issued in July barring all government entities, including school districts, from requiring anyone to wear face coverings.
At the time, the children, all under age 12, were not eligible for Covid-19 vaccines and their parents claimed Abbott’s order violated the Americans with Disabilities Act and two other federal laws.
“If school districts are unable to implement Covid-19 protocol as they each deem appropriate, parents of medically vulnerable students will have to decide whether to keep their children at home or risk placing them in an environment that presents a serious risk to their health and safety,” the parents said in a Sept. 1 amended complaint in which they added Texas Attorney General Ken Paxton, a Republican, as a defendant.
With the delta variant causing a spike in coronavirus cases and hospitalizations in August as schools welcomed back students from summer break, Democratic county officials and school superintendents in Texas' largest metro areas of Austin, Dallas, Houston and San Antonio implemented mask orders for their school districts in defiance of Abbott’s decree.
Abbott and Paxton filed numerous legal actions in early September to bring insubordinate school districts into compliance, even as the number of Texas children hospitalized with Covid-19 reached an all-time high of 345 on Sept. 5, and dozens of Texas school districts had to stop in-person classes and return to virtual classes amid outbreaks of the delta variant.
Paxton even included more than 100 Texas school districts in a list entitled “Government Entities Unlawfully Imposing Mask Mandates” he published on his agency's website. It has since blocked public access to the list.
The legal landscape on Texas school mask decrees became a confusing patchwork earlier this fall with the Texas Supreme Court siding with Paxton and Abbott and staying some lower court orders that had allowed the decrees, while refusing to intervene in other school mask policy disputes.
U.S. District Judge Lee Yeakel cleared the slate Nov. 10 when he ruled in favor of the seven disabled students, and issued a permanent injunction blocking Paxton from enforcing GA-38 against public school districts.
Yeakel, a George W. Bush appointee, found Abbott’s executive order was precluded by three federal laws: the Americans with Disabilities Act, Section 504 of the Rehabilitation Act and the American Rescue Plan Act.
Yeakel agreed with the students GA-38 is unlawful because it denies them “the equal opportunity to participate in in-person learning with their non-disabled peers” and “denies them the benefits of public schools’ programs, services, and activities to which they are entitled.”
Paxton appealed to the Fifth Circuit.
A three-judge panel of the New Orleans-based appellate court stayed Yeakel’s injunction Wednesday, thereby reinstating GA-38, pending resolution of the appeal.
U.S. Circuit Judge Corey Wilson, a Donald Trump appointee, signaled the panel will likely order Yeakel to dismiss the case entirely because they believe the disabled students lack standing.
Wilson said Yeakel had based his decision on a false binary choice—that due to Abbott’s order barring school mask mandates, the plaintiffs had to either to stay home and receive their classwork via virtual learning or go to school and catch Covid-19.
The appellate judge noted the case record has no evidence the plaintiffs asked for any accommodations other than their schools imposing mask mandates.
“Other means exist to control the spread of Covid-19 in school settings like vaccination, social distancing, plexiglass, and voluntary mask wearing,” Wilson wrote in the unanimous 15-page order.
In addition, the panel found the seven disabled students failed to exhaust their administrative remedies by requesting special education due process hearings under the Individuals with Disabilities Education Act, in which they could argue their school districts were not adequately protecting them from Covid-19.
Wilson also disagreed with Yeakel’s holding that GA-38 is preempted by federal law.
He expressed sympathy for the students, writing nothing in the Fifth Circuit's order should suggest they and their parents do not have legitimate concerns about the risks they face from Covid-19.
“But, at least at this preliminary stage, it is unclear that plaintiffs have stated any injury-in-fact sufficient to confer standing, or that either GA-38, or Attorney General Paxton’s actions in enforcing it, result in any cognizable deprivation of plaintiffs’ access to in-person public education,” he concluded.
Wilson was joined on the panel by U.S. Circuit Judges Jennifer Elrod, a George W. Bush appointee, and Andrew Oldham, a fellow Trump appointee.
The students are represented by Disability Rights Texas. Its supervising attorney Dustin Rynders said in a statement he is disappointed with the Fifth Circuit’s ruling but is looking forward to presenting the merits of the case to the appellate court, especially in light of the threat posed by the new omicron Covid-19 variant.
No omicron infections have been detected yet in Texas, but they have in California and Minnesota.
“Our suit has always been about allowing students with disabilities at high risk of Covid to attend schools in person as safely as possible,” Rynders said. “As new Covid variants threaten to make an improving situation worse again, it is imperative schools have the option of requiring masks in the class, campus or district as needed to protect vulnerable students.”