The U.S. Court of Appeals, 5th Circuit, temporarily restored the Texas governor last week. Greg Abbott banned the use of face masks in public schools. This indicated that Texas’s Supreme Court of Appeals for the 5th Circuit was skeptical about his argument that his executive orders violate federal laws against discrimination. 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.
U.S. district judge Lee Yeakel, in response to a suit brought by parents of seven children with different disabilities, ordered Texas not to enforce GA-38. The July 29 order, which Abbott issued stating that “no governmental entity may require any person to use a face cover,” was enjoined last month. Yeakel agreed that the order unlawfully forced the students to choose between staying home or risking COVID-19 infection by attending school. Yeakel received a temporary stay by the 5th Circuit, stating that Yeakel had violated his injunction. They also failed to use administrative remedies. In any event, they could not argue that the prohibition on wearing face masks amounts to discrimination.
Yeakel said that the students are entitled to accommodation to address their vulnerability to COVID-19 because they have special needs. He said that by removing mask requirements from the discussion, Abbott’s orders violated the Rehabilitation Act. This bans discrimination against persons with disabilities in federally-funded programs and the Americans With Disabilities Act. It also applies to places of public accommodation and state and local governments.
5th Circuit agrees with plaintiffs. They “likely failed to prove an injury in practice,” which is the threshold requirement for filing a lawsuit. According to a unanimous trio of judges, plaintiffs can well assert particularized harm because they each allege a disability which makes them vulnerable during the pandemic. The enforcement of GA 38 will most likely result in them failing to prove any actual or imminent injury.
Plaintiffs claimed that Abbott’s order deprives them in-person instruction. This would be unacceptable if students or staff were required to wear masks. According to the 5th Circuit, “Plaintiffs do not have to show that they are faced with such an either/or’ choice because of GA-38 and that their conclusion by the district judge that they did was likely incorrect.” While the risks to these plaintiffs of COVID-19 exposure are certain, they also face the potential for injury. GA-38 enforcementThis is a much abstracter choice. 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.”
Plaintiffs must show “actual” or “imminent” injuries in addition to showing a concrete injury. According to the appeals court, “[i]ncreased-risk claims—even when they are particularized—often cannot satisfy the ‘actual or imminent’ requirement.” The article cites a 2007 opinion written by Supreme Court Justice Brett Kavanaugh as a D.C. Circuit judge. “Much government regulation slightly increases a citizen’s risk of injury—or insufficiently decreases the risk compared to what some citizens might prefer,” Kavanaugh observed. The ‘actual’ or imminent requirement to meaning would be removed by opening up the courthouse to such high-risk claims. [and] expand the ‘proper—and properly limited’—constitutional role of the Judicial Branch beyond deciding actual cases or controversies.”
The plaintiffs must also prove that their remedy would actually address the claimant’s injury. This is another requirement. The 5th Circuit points out that a ban on the imposing of masks would not automatically cause schools districts to do so, as this decision is left up to them.
Yeakel concluded the claims of the plaintiffs under the ADA/Rehabilitation Act were separate from those under the Individuals With Disabilities Education Act, which mandates “a free and appropriate public education for all students with disabilities.” This was critical because IDEA mandates that plaintiffs seek administrative remedies prior to filing a lawsuit. There was no evidence in the case that they had.
As the 5th Circuit notes, the plaintiffs’ argument, broadly construed, implies that “any plaintiff could insist upon a mask mandate at any public facility”—including libraries, theaters, and other private businesses—”or assert an ADA or Rehabilitation Act claim based on the entity’s failure to impose one.” However, the court states that their principal claim isn’t so broad.
The 5th Circuit noted that the plaintiffs base claim something special: deprivation in person of state-sponsored education due to their risk of contracting COVID-19, without a mandate. This allegation is similar to an IDEA claim. The court states that IDEA probably applies and because there is no evidence to show plaintiffs sought administrative remedies prior to filing suit, it’s likely the district court did not have jurisdiction.
In addition, the 5th Circuit stated that there is no evidence to suggest that any plaintiffs made requests for reasonable accommodations under either the ADA and the Rehabilitation Act. The 5th Circuit notes that “reasonable accommodation requests are generally part of a prima facie claim for relief under both the ADA or Rehabilitation Act.”
Even if they were able meet these threshold requirements the appeals court said that their claims for ADA or Rehabilitation Act are questionable. The 5th Circuit points out that “the district court’s ruling that the ADA/Rehabilitation Act preempt GA-38) is based apparently on the premise of GA-38 being applied to schools in a way that would render them unable to comply with those laws or interfere with their purposes, since a mask mandate would only be able to give plaintiffs an in person public education.” But it says the availability of alternative safeguards—the same consideration that undermines the plaintiffs’ injury claim—casts doubt on that conclusion as well, since “Plaintiffs are not entitled to their preferred accommodation under the ADA and Rehabilitation Act if other reasonable accommodations are available.”
The court mentioned several accommodations that could be made for plaintiffs. However, vaccines are now available to anyone aged 5 and older. This significantly reduces the chance of developing life-threatening conditions. Even though some plaintiffs may not be able to receive vaccination, or have weaker immune systems due to preexisting conditions such as diabetes or heart disease, the possibility of transmission from school would still be reduced if they were vaccinated by their classmates.
Abbott’s order states that school districts are not required to vaccinate, but that they may encourage and promote vaccination. This is in contrast with the “universal concealing” argument that plaintiffs insist on. K–12 mask mandates are controversial in the United States and eschewed by many other developed countries. The evidence that the benefits of such policies outweigh the substantial burdens they impose is limited and equivocal.
Children and teens are often affected by COVID-19, even if they have not been vaccinated. They can be mild to moderately fatal and nearly never die. The Centers for Disease Control and Prevention reported that 630 Americans aged less than 18 were dead from COVID-19. This is 0.08 percent of U.S. death rates since the start of the pandemic, nearly two years ago. By comparison, the CDC estimated that 486 minors died from the seasonal flu in 2019–20. The CDC estimates that the COVID-19 infection fatality rate for this age group is 0.002 percent.
The lawsuit’s premise is, naturally, that children with special disabilities have a greater than average risk of developing COVID-19 symptoms. Even if the risk of dying was 10 to 100 times higher, however, this would still not be a significant problem.
The plaintiffs want a safeguard with uncertain effectiveness in order to guard against small risks. They argue that it is required by federal law. Yeakel, Cardona and others suggest that lifting Abbott’s order wouldn’t leave school districts free to implement masking policies. Local officials would be pressured to enforce mask mandates regardless of whether they truly believe that the policy is sensible by fear of legal action.