In E.T. v. Paxton, No. 21-51083 (5th Cir. July 25, 2022), a Fifth Circuit panel splits three ways on whether a group of parents had standing to sue Texas Governor Greg Abbott, the state’s attorney general, and other officers to enjoin an executive order that banned mask mandates in schools, specifically as an accommodation for their children with disabilities who were especially at risk of COVID infection.
The executive order “GA-38 provides that ‘[n]o governmental entity, including a . . . school district . . . , and no government official may require any person to wear a face covering or to mandate another person wear a face covering’ . . . . [P]laintiffs filed this lawsuit in federal district court challenging GA-38 and related Public Health Guidance from the Texas Education Agency (‘TEA’). The original complaint included 14 plaintiffs, who were ‘students with disabilities and underlying medical conditions which carry an increased risk of serious complications or death in the event that they contract COVID-19.’ It named as defendants Governor Abbott, the TEA, and TEA Commissioner Mike Morath.” The complaint alleged violation of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973, and federal preemption under the American Rescue Plan Act of 2021 (“ARP Act”).
The district court held that the plaintiffs have standing to sue. It declared that GA-38 violates Title II of the ADA and Section 504 of the Rehabilitation Act, and was preempted by the ADA, Section 504, and the ARP Act. The court enjoined the executive order and the defendants appealed the injunction.
The Fifth Circuit reverses. Judge Andrew S. Oldham writes for the panel, although Judge Don Willett concurs (without a separate opinion) only in the judgment. The panel does not reach the merits of the claim; it holds only that the families lacked standing to bring the action.
The panel majority articulates the plaintiff’s theory of injury. “Plaintiffs’ alleged injury is the increased risk they face of contracting COVID-19 in school without mask mandates and experiencing complications or severe symptoms from a COVID-19 infection. They rely on their doctors’ statements that ‘[i]n order to decrease [plaintiffs’] risk,’ everyone around them ‘should observe strict COVID-19 safety protocols and wear a mask indoors.’ Plaintiffs further contend that, without mask mandates, it is ‘simply too dangerous’ for them to attend in-person school.”
But the panel majority finds these risks either unproven or too speculative. “There is no way to understand plaintiffs’ trial evidence as establishing COVID-19 infections are ‘certainly impending’ in schools without mask mandates, but not in schools mandating masks . . . . At the time of trial, two of plaintiffs’ seven schools were mask-optional (in compliance with GA-38), and five mandated masks (in violation of GA-38). 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. 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.” Moreover, “[i]n light of widely available vaccines and the schools’ other mitigation efforts, “the odds” of any particular plaintiff contracting COVID-19 and subsequently suffering complications are ‘speculative.’”
The plaintiffs attempted to reframe the injury as access to schools for student with disabilities. But the panel majority holds that “[n]either the ADA nor Section 504 creates a legally protected interest in equality simpliciter. Rather, those statutes legally protect reasonable access to covered facilities and benefits. And they require covered entities to facilitate such access by way of reasonable accommodations. So ADA plaintiffs aren’t necessarily injured every time their method of access differs from that of their non-disabled peers—they’re injured when they are denied the reasonable access the statutes protect . . . . Moreover, the record supplies no reason to think any student would be denied such case-by-case determinations if plaintiffs in fact requested them. Nor does GA-38 in any way prevent case-by-case decisionmaking. It simply eliminates one option—a mask mandate— and retains all others.”
The panel majority also holds that the alleged injuries were not “fairly traceable” to the challenged action of the defendants. “[I]t’s undisputed the Attorney General’s enforcement activity did not cause five of the seven plaintiffs’ schools to eliminate their masking requirements. As the parties stipulated at the time of trial, those schools maintained their mask mandates despite the Governor’s issuance of GA-38, despite receiving ‘threatening letter[s]’ from the Attorney General, and despite the Attorney General actually suing some school districts. So at least with respect to five of the plaintiffs’ schools, plaintiffs cannot establish the first link in the causal chain: Their school districts refused to eliminate mask mandates, regardless of what the Attorney General said or did.” Moreover, the panel majority notes that the record reflects “innumerable differences in the way plaintiffs’ schools—each an independent actor—have chosen to address COVID-19,” so an injunction against the executive order would not by itself bring the result the families seek.
Finally, the panel majority holds that the plaintiffs cannot establish redressability, because it failed to sue the primary actors, the school districts themselves. “[P]laintiffs rely wholly on speculation about the unfettered choices made by actors not before our court. Plaintiffs chose not to sue their school districts. The school districts have the unfettered choice—with or without GA-38, and with or without any involvement by the Attorney General—to drop their mask mandates at any time. And indeed they have. None of plaintiffs’ schools require masks today. And we could not enjoin those schools to impose mask mandates if we wanted to because plaintiffs did not sue them.”
Judge W. Eugene Davis dissents. He would have found standing and substantially upheld the decision below on the merits. “[T]his case was tried to the bench, and the district court, based on essentially uncontradicted evidence, entered detailed findings of fact. The plaintiffs produced evidence from their personal physicians attesting to plaintiffs’ severe disabilities and giving their strong opinions that, because of their disabilities, they should not attend classes where students and staff they were near were not wearing masks. They testified that when the action was filed and tried, the plaintiffs were not eligible for vaccinations against COVID-19 and that in any event no option except requiring staff and students in contact with them to wear masks would give plaintiffs adequate protection from COVID-19 given the dire consequences plaintiffs could suffer. Plaintiffs also produced evidence that the schools they attended had mask mandates in place until GA-38 was issued, and the defendant began aggressively threatening the ISDs with lawsuits and fines if they required students and staff to wear masks.”