A federal appeals court has reinstated Gov. Greg Abbott’s executive order banning mask mandates as it weighs a federal judge’s ruling that the ban violates the rights of disabled students.
U.S. District Judge Lee Yeakel previously ruled that the order violated the Americans with Disabilities Act and the American Rescue Plan, which gives discretion to school districts to follow Centers for Disease Control and Prevention guidance on the virus. Yeakel, an appointee of former President George W. Bush, had banned state Attorney General Ken Paxton from enforcing the order, including suing school districts that required masks.
Texas appealed the judge’s ruling to the Fifth Circuit U.S. Court of Appeals in New Orleans, a court composed mostly of judges appointed by Republican presidents that has historically trended conservative in its legal decisions. Wednesday’s decision was made by a three-judge panel, two of whom were appointed by former President Donald Trump.
The lawsuit was brought by Disabled Rights Texas on behalf of a number of children with disabilities in Texas. Lawyers for those children argued the law banning mask mandates goes against CDC advice and that it doesn’t allow schools to consider mask mandates as an accommodation for kids with disabilities who are particularly vulnerable to COVID-19. They argued that it violates the ADA, which requires equal access to public goods for people with and without disabilities.
See here for the background. Other than the Bloomberg News story linked in the Chron piece, which says that the order was made by the court without any explanation, I can’t find any coverage of this, so this is what we know. But honestly, how much more do we need to know? As with the SB8 case and the detailed ruling given by the district court judge, the Fifth Circuit exists to enforce a partisan orthodoxy on whatever comes before it. When was the last time the state of Texas went running to them to ask for a stay on a ruling they didn’t like and got a No answer? All of the things that reformers want to do to the Supreme Court need to be done with even more urgency to this abomination.
THE OTHER FIFTH
Meanwhile, the Fifth Court of Appeals (Texas state Court of Appeals in Dallas) has affirmed a temporary injunction against enforcement of the anti-mask-mandate portion of Abbott’s GA-38, and explained painstainingly in a 36-page opinion (long by Texas COA standards) that he exceeded his powers under the Texas Disaster Act by interfering with the County Judge’s management of the pandemic at the county level.
From the opinion:
The trial court found that the issuance of the temporary injunction will maintain the status quo between the parties by returning Jenkins to the position he was in before GA-38 restrained his local response to the resurgence of COVID-19 infections and hospitalizations in Dallas County due to the highly contagious delta variant. We have determined that Jenkins has a probable right to relief on his claim that Abbott’s actions are ultra vires and Abbott has no authority to act unilaterally to ban local mandates for face coverings. Thus, the status quo cannot be the governor’s prior executive order if that order contained language to a similar effect.”
Because the preservation of the status quo could not as a matter of law include the continuation of actions in violation of and beyond the scope of authority granted in the Disaster Act, we conclude the trial court did not abuse its discretion by imposing a temporary injunction to prevent such conduct. See City of San Antonio, 2021 WL 5217636, at *7 (“Enjoining enforcement of the Governor’s Executive Order GA-38 is necessary because allowing continued enforcement of the order would be unlawful.”). …
We affirm the trial court’s August 25, 2021 order granting Jenkins’s request for a temporary injunction.
Abbott v. Jenkins, No. 05-21-00733-CV (Tex.App.-Dallas Nov. 22, 2021, no pet. h.).
FULL CASE STYLE ON OPINION: Governor Greg Abbott, in his Official Capacity as Governor of the State of Texas v. Clay Jenkins, In His Official Capacity as County Judge of Dallas County. [Note however that “The State of Texas” through the Attorney General also appealed, asserting lack of jurisdiction, a contention that was overruled with reference to SCOTX having previously allowed the temporary injunction hearing to go forward in a mandamus preceeding challenging the temporary restraining order issued in the same case.]
We’ll have to see whether the SCOTX will reverse them and hold that Abbott has dictatorial powers once he declares a state of disaster that allows him — inter alia — to countermand local governments’ efforts to protect their constituents the best they know how from the harm caused by disaster at the local level.
The San Antonio Court of Appeals also ruled against the Governor, in a case involving the City of San Antonio and Bexar County. See Abbott v. City of San Antonio, No. 04-21-00342-CV, 2021 WL 5217636 (Tex. App.—San Antonio Nov. 10, 2021, no pet. h.).
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