Governor Greg Abbott points to a reporter during a press conference on May 27, 2022.
Seven severely disabled children cannot overturn an executive order by Texas Gov. Greg Abbott (R) banning schools from responding to the COVID-19 pandemic with mask mandates, a divided panel of the Fifth Circuit Court of Appeals has ruled.
In August 2021, the children — represented by the advocacy group Disability Rights Texas — filed a lawsuit in the U.S. District Court for the Western District of Texas alleging that Abbott’s Executive Order GA-38 violates the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and the American Rescue Plan (ARP Act).
The order decreed: “No governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face covering or to mandate that another person wear a face covering,” leaving exceptions for certain hospitals and prisons.
The children reached early success in the courtroom of U.S. District Judge Lee Yeakel, a George W. Bush appointee who found in their favor in a detailed ruling following a bench trial.
“The evidence here supports that the use of masks may decrease the risk of COVID infection in group settings,” Yeakel found on Nov. 10, 2021. “Plaintiffs here are at higher risk of contracting COVID that their non-impaired peers. But because GA-38 precludes mask requirements in schools, Plaintiffs are either forced out of in-person learning altogether or must take on unnecessarily greater health and safety risks than their nondisabled peers. The evidence presented by Plaintiffs establishes that Plaintiffs are being denied the benefits of in-person learning on an equal basis as their peers without disabilities.”
On Monday, two Donald Trump appointees on the U.S. Court of Appeals for the Fifth Circuit overruled that decision, ordering the lower court judge to permanently dismiss the case.
U.S. Circuit Judges Andy Oldham, the lead author, and Don Willett said that the children couldn’t meet their burden.
“Here, all agree plaintiffs have physical access to their classrooms,” the majority opinion states. “All agree all seven schools take a multi-pronged approach to COVID-19 mitigation. All agree plaintiffs, their classmates, and their teachers are welcome to wear masks and ask those around them to wear masks. All agree plaintiffs presented zero evidence that anyone—let alone ‘individual[s] working constantly with a disabled child,’ […] —would refuse a request to wear a mask or take comparable safety measures while working closely with a vulnerable student.”
Dissenting U.S. Circuit Judge W. Eugene Davis, a Ronald Reagan appointee, noting that the “straightforward” case involved “seven severely disabled children,” chastised his colleagues for disregarding the “unchallenged” and “uncontradicted” evidence.
“More specifically, based on unchallenged evidence, they established that without some type of mask mandate, they cannot attend classes during the pandemic, and they are unfairly deprived of the valuable benefit of attending school, in violation of Section 504 and the ADA,” Davis wrote. “Because the district court found uncontradicted evidence that the defendant’s enforcement of GA-38 was the only impediment to a school district’s granting a modification required by Section 504 and Title II to allow plaintiffs to attend school safely, the injunction was appropriate.”
Disability Rights Texas’s supervising attorney Dustin Rynders told Law&Crime: “We are disappointed in the decision and are reviewing options.”
Gov. Abbott press representative did not respond to Law&Crime’s email requesting comment.
(Photo by Michael M. Santiago/Getty Images.)