No mask required: Fifth Circuit grants stay in E.T. v. Paxton


By: Tia J. Combs

On July 29, 2021, Governor Greg Abbott of Texas issued Executive Order GA-38, which provided, among other things, that “[n]o governmental entity, including…a school district…and no governmental official may require any person to wear a face covering or to mandate that another person wear a face covering[.].” The provision superseded any requirement by a local governmental entity or official that a face covering be worn. Several challenges to the order were brought, including one by the parents of 7 disabled children enrolled in Texas public schools, E.T. v. Paxton, No. 21-51083, 2021 U.S. App. LEXIS 35508 (5th Cir. Dec. 1, 2021). 

Plaintiffs sought a declaration that enforcement of GA-38 against school officials violates federal law, specifically the ADA, IDEA, and the American Rescue Plan Act. They sought preliminary and permanent statewide injunctive relief barring Attorney General Ken Paxton from enforcing the order. After Defendants filed a Motion to Dismiss the parents’ action, the district court held a bench trial in October 2021, eventually holding that Plaintiffs had standing to sue the Attorney General and that GA-38 violated the ADA and the Rehabilitation Act and was preempted by both and the American Rescue Plan Act. The district court permanently enjoined the Attorney General from enforcing GA-38 against public schools that required masks. The Attorney General appealed to the Fifth Circuit and sought an emergency stay of the district court’s injunction pending the decision on appeal.  

The Fifth Circuit granted the stay. The court held that the Attorney General was likely to succeed on the merits because 1) it was likely Plaintiffs did not have standing because they could not show actual or imminent injury because they could not prove that going to school where all were not wearing masks would inexorably lead to them contracting COVID-19 and even the injunction against GA-38 did not necessarily mean Plaintiffs’ schools would have a mask mandate, 2) Plaintiffs had not exhausted their remedies under the IDEA as required by Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 755 (2017), 3) the ADA, Rehabilitation Act, and American Rescue Plan did not preempt GA-38 as the district court had found, and 4) the district court’s blanket injunction prohibiting the enforcement of GA -38 in all public schools in Texas was overbroad.  The court also found that the other factors delineating when a stay pending appeal is appropriate weighed in favor of the Attorney General.  

While this particular decision is limited to a single Texas executive order, schools should await the Fifth Circuit’s substantive decision as to the ADA discrimination claim as several cases across the country have asserted this claim in response to district masking decisions.  

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