The U.S. Court of Appeals for the 5th Circuit last week temporarily restored Texas Gov. Greg Abbott's ban on face mask mandates in public schools, signaling that it is skeptical of the argument that his executive order violates federal laws prohibiting discrimination against people with disabilities. 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.
In response to a lawsuit by the parents of seven students with various disabilities, U.S. District Judge Lee Yeakel last month enjoined Texas from enforcing GA-38, the July 29 order in which Abbott said "no governmental entity" may "require any person to wear a face covering." Yeakel agreed that the order unlawfully forced the students to choose between staying home or risking COVID-19 infection by attending school. The 5th Circuit imposed a stay on Yeakel's injunction pending appeal, saying the plaintiffs lacked standing, had failed to exhaust administrative remedies, and in any case probably could not succeed in arguing that the ban on face mask mandates amounted to illegal discrimination.
Because the seven students have disabilities that make them especially vulnerable to COVID-19, Yeakel concluded, they are entitled to accommodations addressing that risk. By taking mask requirements off the table, he said, Abbott's order ran afoul of the Rehabilitation Act, which bans discrimination against people with disabilities in federally funded programs, and the Americans With Disabilities Act (ADA), which applies more broadly to state and local governments as well as places of public accommodation.
The 5th Circuit is inclined to disagree, saying the plaintiffs "likely" failed to show an "injury in fact," a threshold requirement for bringing their lawsuit. "Plaintiffs may well allege particularized harm given that each of them alleges a disability that leaves them particularly vulnerable during the pandemic," the unanimous three-judge panel says. "But they likely falter in showing any concrete, or actual or imminent, injury as a result of the enforcement of GA-38."
The plaintiffs argued that Abbott's order effectively deprives them of in-person instruction because that would entail unacceptable risks unless students and staff are required to wear masks. "Plaintiffs have not shown that they face such an 'either/or' choice as a result of GA-38, and the district court's conclusion that they do was likely erroneous," the 5th Circuit says. "The risks of contracting COVID-19 for these plaintiffs are certainly real, but the alleged injury to plaintiffs from the enforcement of GA-38 is, at this point, much more abstract. 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."
In addition to demonstrating a "concrete" injury, the plaintiffs have to show that the injury is "actual or imminent." The appeals court notes that "[i]ncreased-risk claims—even when they are particularized—often cannot satisfy the 'actual or imminent' requirement." It quotes a 2007 opinion that Supreme Court Justice Brett Kavanaugh wrote 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. "Opening the courthouse to these kinds of increased-risk claims would drain the 'actual or imminent' requirement of meaning [and] expand the 'proper—and properly limited'—constitutional role of the Judicial Branch beyond deciding actual cases or controversies."
Another threshold requirement for the lawsuit is that the remedy sought by the plaintiffs actually would address the injury they claim. But in this case, the 5th Circuit notes, barring enforcement of the ban on mask requirements would not necessarily cause school districts to impose them, since that decision would be left to their discretion.
Yeakel concluded that the plaintiffs' claims under the ADA and the Rehabilitation Act were distinct from their claims under the Individuals With Disabilities Education Act (IDEA), which requires "a free appropriate public education" for students with disabilities. That determination was crucial, because IDEA requires that plaintiffs pursue administrative remedies before filing a lawsuit, and there was no evidence that the plaintiffs in this case had done that.
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." But the court says their main claim is not so sweeping.
"The plaintiffs at base allege something very particular: the deprivation of an in-person state-sponsored education because of their risk of contracting COVID-19 without a mask mandate," the 5th Circuit notes. That allegation looks like an IDEA claim. "Because IDEA likely applies," the court says, "and because nothing in the record establishes that plaintiffs pursued any administrative remedies before filing suit, the district court likely lacked jurisdiction over their claims for this reason as well."
The 5th Circuit adds that "the record is devoid of evidence that plaintiffs have made any requests for reasonable accommodation under the ADA or the Rehabilitation Act." It notes that "a request for reasonable accommodation is generally a part of a prima facie case for relief under the ADA and Rehabilitation Act."
Even if the plaintiffs were able to satisfy these threshold requirements, the appeals court says, their ADA and Rehabilitation Act claims are dubious. "The district court's holding that the ADA and the Rehabilitation Act preempt GA-38 is seemingly based on the premise that application of GA-38 would make it impossible for schools to comply with the ADA or the Rehabilitation Act, or would interfere with the purposes of those federal laws, because a mask mandate would be the only way to provide plaintiffs an in-person public education," the 5th Circuit notes. 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."
Of the "various accommodations available to the plaintiffs" that the court mentions, vaccination, which is now approved for anyone 5 or older, is likely to be the most effective precaution, since it dramatically reduces the risk of life-threatening symptoms. Even if some of the plaintiffs are medically disqualified from vaccination or are apt to have less robust immune responses because of their preexisting conditions, vaccination of their fellow students would reduce the risk of in-school transmission.
Under Abbott's order, school districts may not require vaccination, but they can encourage and facilitate that precaution, which has a much stronger empirical basis than the "universal masking" that the plaintiffs portray as essential. 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.
Even without vaccination, COVID-19 cases among children and teenagers are typically mild and almost never fatal. As of December 1, according to the numbers reported by the Centers for Disease Control and Prevention (CDC), 630 Americans younger than 18 had died from COVID-19, which represents 0.08 percent of all U.S. fatalities since the beginning 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 whole premise of this lawsuit, of course, is that children with certain disabilities face a higher-than-average risk of life-threatening COVID-19 symptoms. But even if their risk of death were 10 or 100 times as high, it would still be very, very small.
At bottom, then, the plaintiffs are demanding a safeguard of uncertain effectiveness to protect against a tiny risk, and they are arguing that federal law requires it. If so, lifting Abbott's order would not simply leave masking policies to individual school districts, as Yeakel and Cardona imply. The threat of litigation would pressure local officials to impose mask mandates, whether or not they honestly think that policy makes sense.