Case: E.T. v. Governor Greg Abbott

On August 17, 2021, Disability Rights Texas filed a lawsuit in the U.S. District Court for the Western District of Texas challenging Governor Abbott's issuing of Executive Order GA-38 ("GA-38"), which prohibited school districts from instituting mask mandates in response to COVID-19. In addition to Governor Abbott, defendants included the Commissioner of the Texas Education Agency ("TEA") and the TEA. Disability Rights filed the suit on behalf of students with disabilities with compromised immune systems under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504"). Plaintiffs also claimed that Governor Abbott was federally pre-empted by the terms of the American rescue Plan Act of 2021. Plaintiffs argued they were students with disabilities and underlying medical conditions carrying an increased risk of serious complications or death in the event that they contracted COVID-19. Higher risk conditions included Down syndrome, moderate to severe asthma, chronic lung and heart conditions, cerebral palsy, and weakened immune systems and were identified by the Centers for Disease Control (“CDC”) as risk factors for severe COVID-19 infection. All plaintiffs were under the age of 12 years old, rendering them ineligible to receive the vaccine under the Food and Drug Administration (“FDA”) regulations at the time of the law suit. Judge Lee Yeakel was assigned to the case.

Plaintiffs filed a motion for a temporary restraining order ("TRO") and preliminary injunction on August 18, 2021, claiming that both the TRO and preliminary injunction were necessary to prevent harm to plaintiffs because the beginning of the school year was fast approaching. Furthermore, plaintiffs argued that they were likely to prevail on the merits because they were qualified individuals under the ADA and Section 504, and because a mask-optional policy would exclude them from school activities with other children.

The court scheduled a bench trial for October 6, 2021 after plaintiffs set aside their request for a TRO in order to proceed directly to trial. Plaintiffs had been encouraged by several Texas courts entering and upholding TROs against enforcement of GA-38. Shortly thereafter, on September 8, 2021, plaintiffs re-requested a TRO and preliminary injunction after a significant uptick in Covid-19 cases at Texas schools. On September 15, 2021, the district court denied plaintiff's emergency motion for a temporary restraining order.

Prior to the hearing for the TRO, Governor Abbott filed a motion to dismiss the case on September 13, 2021. In response to the court's denial and the Governor Abbott's motion, plaintiffs filed a second amended complaint on September 29, 2021, re-alleging the same claims in conjunction with more data on the Delta variant and exhibits detailing Governor Abbott's politicization of the issue of mask mandates in schools. On the same day, the United States entered a statement of interest in support of plaintiffs, claiming that the ADA and Section 504 preempted GA-38. 

On November 10, 2021, the district court issued an order granting “in part the motion to dismiss as to Defendants Mike Morath and the Texas Education Agency (“TEA”) only and makes the following findings of fact and conclusions of law, ultimately concluding that [the executive order] violates Plaintiffs’ rights under the ADA and Section 504 and is preempted by the ADA, Section 504, and the ARP Act.” The same day, the court issued a permanent injunction on behalf of plaintiffs, finding that GA-38 violated the ADA, Section 504, and the provisions of the American Rescue Plan Act of 2021 that applied to school districts. The court also awarded litigation costs at defendant's expense to plaintiffs.

The State of Texas filed an appeal with U.S. Court of Appeals for the Fifth Circuit on November 11, 2021. Defendant's motion to stay the injunction pending the appeal was denied by the district court on November 22, 2021. On Dec. 1, 2021, the Fifth Circuit granted a stay of the injunction pending a decision on appeal. 

The Fifth Circuit vacated the district court's judgement and ordered the case to be dismissed on July 25, 2022. An opinion was later issued on August 16, 2022. The case was heard by Circuit Judges Andrew S. Oldham, Don Willett, and W. Eugene Davis. In an opinion written by Circuit Judge Oldham, the Fifth Circuit held that the district court lacked subject-matter jurisdiction because plaintiffs lacked standing. The Fifth Circuit found that an increased risk of contracting Covid-19 failed to create an actual or imminent injury sufficient to meet the requirements of Article III standing. Plaintiffs failed to meet the traceability prong as well because there would be no way of tracing their injuries back to GA-38 because plaintiffs did not substantiate their claims of increased risks or have a way to attribute contracting Covid-19 to the absence of mask mandates. The Fifth Circuit also held that plaintiffs' claims were not redressable because they had filed suit against the state government rather than the individual school districts responsible for either instituting or refusing to institute a mask mandate. Circuit Judge W. Eugene Davis filed a dissent, arguing that the district court had properly adjudicated the case. 

This case is closed.