A big case with potential national implications.
School district leaders should have the right to make decisions about mask mandates based on the needs of their students and local coronavirus spread data, attorneys argued Wednesday in federal court.
Lawyers with Disability Rights Texas, who filed the first federal lawsuit over the ban in mid-August, allege that Gov. Greg Abbott’s prohibition on mask mandates puts students with disabilities at risk.
The organization claims that Abbott’s executive order violates federal anti-discrimination law, which prohibits the exclusion of students with disabilities from public education programs and activities.
Disability Rights Texas represents students mostly younger than 12 with disabilities and underlying medical conditions “which carry an increased risk of serious complications or death in the event that they contract COVID-19″ including children who have Down syndrome, moderate to severe asthma, and chronic lung or heart conditions.
“Doctors that treat the plaintiffs told them to avoid places without universal masking,” attorney Scott Thomas said.
Their parents submitted testimony outlining their difficult choices about whether to prioritize their vulnerable children’s educational needs or their health.
“No parent should be forced to make a decision like this,” one said.
Ryan Kercher, arguing on behalf of the state, stressed that the lawsuit hinged on data, pointing to the relatively low number of COVID-19 cases in the schools of the students suing.
Judge Lee Yeakel interrupted Kercher, asking why the data mattered. If the odds of contracting COVID-19 were 10,000-1, it would matter to the one person, he said.
Kercher pushed back, saying it is important to examine the number of cases to see if a real risk existed should masks not be mandated. Holding up Fort Bend Independent School District, which does not require masks, as an example, Kercher said the district near Houston had case totals that are on par with districts that do not require masks.
But Yeakel also questioned why not search for the most safe option to prevent the spread of coronavirus.
“That’s not a choice anyone gets,” Kercher said, noting that the speed limit isn’t 5 miles per hour everywhere. He and his co-counsel did not wear face coverings during the hearing.
Yeakel did not rule on the case Wednesday but said he would work to do so as quickly as possible. He alluded to the national interest and impact such a decision could have as states across the country are also in the midst of their own mask battles. No matter what he decides, appeals appear likely.
See here, here, and here for the background. The Justice Department got involved in the case on the side of the plaintiffs earlier this week. I think they have a strong case, and of course I’m rooting for Greg Abbott to be handed a loss, but we’ll see. I do think this one will eventually make its way to SCOTUS, perhaps quickly if there’s a question about staying a favorable ruling for the plaintiffs. KVUE has more.
ADA CHALLENGE TO GA-38 AS AN ALTERNATIVE
The problem here is that the federal lawsuits constitutes special-interest advocacy on behalf of a relatively small constituency (i.e., portion of the affected population of students, not to mention all affected individuals including teachers and staff), and that the claims are necessarily driven by the way the ADA is written.
It would be much better for GA-38 to be struck down categorically as an ultra-vires perversion of the Texas Disaster Act (in the form of “purpose inversion”, i.e. promotion of disease rather than coping with it) or even as contrary to the separations of powers clause of the Texas constitution.
Alas, the SCOTX is Greg Abbott’s court and won’t stand up to his overreach, but can instead be counted on to blindly and automatically bless whatever he does.
There is, in effect, no separation of powers de facto between Governor/AG and SCOTX, and no constraint on the crass abuse of gubernatorial emergency powers.
Worse, there is no one to dissent on the all-GOP high court to disturb the group think and the jollly us-vs-them consensus that Abbott is our guy and gets to rule like a King. So the supremes don’t even feel a need to explain themselves in a reasoned opinion. Shadow docket staccato orders countermanding lower courts will do just fine.
INDEFENSIBLE: USE OF DISASTER ACT POWERS TO PROMOTE DISASTER
And what legitimate reason could there for invoking the Disaster Act to aggravate the Distater by stopping lower-level officials from pursuing mitigation measures.
See the excellent briefing of the relevant legal arguments in the Jenkins v. Abbott case here:
https://search.txcourts.gov/Case.aspx?cn=05-21-00733-CV&coa=coa05
(case recently submitted with opinion forthcoming)
RE-CREDITING THE NEOLOGISM COINAGE
The Clerk of the Texas Supreme Court would have credit for originating the term “shadow docket” rightfully bestowed upon Pamela Baron, albeit with a different – more slowpockey rather than quikie-quickie – connotation.
TO WIT:
Blake Hawthorne
@blakeahawthorne
·
Oct 3
I have to agree that people that say the term “shadow docket” was coined in 2015 by William Baude are overlooking @PamelaSBaron’s much earlier use of this phrase here in Texas to talk about @SupremeCourt_TX ’s docket. It’s right here in black and white. Down pointing backhand index
Quote Tweet
Pamela Baron
@PamelaSBaron
· Oct 3
FYI @steve_vladeck, since Sept. 2006, I have been applying the term “shadow docket” to cases pending at #SCOTX for more than a year without disposition. These cases are candidates for per curiam disposition or are being held for another case. #appellatetwitter #shadowdocket
BIO INFO: https://www.linkedin.com/in/pamela-stanton-baron-b2156b29
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So, let the annals of appellate advocacy reflect that correction, and hold plagiarism allegations (not to mention moniker misappropriation) in …. What was the Fifth’s term of art? …. ahh, abeyance.