Case: 21-51083 Document: 00516406497 Page: 1 Date Filed: 07/25/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 25, 2022
No. 21-51083 Lyle W. Cayce
Clerk
E.T., by and through her parents and next friends; J.R., by and through her
parents and next friends; S.P., by and through her parents and next friends;
M.P., by and through her parents and next friends; E.S., by and through her
parents and next friends; H.M., by and through her parents and next friends;
A.M., by and through her parents and next friends,
Plaintiffs—Appellees,
versus
Kenneth Paxton, in his official capacity as Attorney General of Texas,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:21-CV-717
Before Davis, Willett, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge: *
In accordance with powers vested in him by the Texas Legislature,
Governor Greg Abbott promulgated Executive Order GA-38 to unify the
State’s response to COVID-19. Among other things, GA-38 prohibited
*
Judge Willett concurs in the judgment and in parts I and II.C of the opinion.
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school districts from imposing mask mandates. Some students sued. Then
the district court permanently enjoined the Texas Attorney General from
enforcing GA-38. We hold, however, that the district court lacked subjectmatter jurisdiction. Accordingly, we vacate the district court’s injunction and
remand with instructions to dismiss the suit without prejudice.
I.
GA-38 provides that “[n]o governmental entity, including
a . . . school district . . . , and no government official may require any person
to wear a face covering or to mandate another person wear a face covering.”
GA-38 has “the force and effect of law.” Tex. Gov’t Code § 418.012.
Plaintiffs are children with disabilities attending Texas public schools.
On August 17, 2021, plaintiffs filed this lawsuit in federal district court
challenging GA-38 and related Public Health Guidance from the Texas
Education Agency (“TEA”). The original complaint included 14 plaintiffs,
who were “students with disabilities and underlying medical conditions
which carry an increased risk of serious complications or death in the event
that they contract COVID-19.” It named as defendants Governor Abbott, the
TEA, and TEA Commissioner Mike Morath.
The original complaint included three claims: (1) violation of the
Americans with Disabilities Act (“ADA”) against Abbott and Morath in
their official capacities, (2) violation of Section 504 of the Rehabilitation Act
of 1973 against all defendants, and (3) federal preemption under the
American Rescue Plan Act of 2021 (“ARP Act”) against all defendants.
Plaintiffs requested declaratory and injunctive relief.
Plaintiffs amended their complaint twice before trial. First, on
September 1, they amended their complaint to add the Attorney General as a
defendant. Second, a week before trial, plaintiffs filed a second amended
complaint with leave of court, adding a new claim and subtracting some
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plaintiffs and a defendant. The new claim alleged the ADA and
Rehabilitation Act preempted GA-38. Seven plaintiffs exited the suit, and the
seven remaining plaintiffs dropped their claims against the Governor.
After denying plaintiffs’ request for a temporary restraining order and
preliminary injunction, the district court held a bench trial and entered a
permanent injunction and final judgment against the Attorney General. The
court held that plaintiffs have standing to sue. It then declared that GA-38
violates Title II of the ADA and Section 504 of the Rehabilitation Act. It
further held that, insofar as it applies to school districts, GA-38 is preempted
by the ADA, Section 504, and the ARP Act. The court enjoined the
Attorney General from enforcing the Executive Order. The Attorney
General sought a stay pending appeal, which the district court denied. But
we granted the stay and expedited the appeal.
II.
“Article III jurisdiction is always first. Here, it’s also last.” Shrimpers
& Fishermen of RGV v. Tex. Comm’n on Env’t Quality, 968 F.3d 419, 426 (5th
Cir. 2020) (Oldham, J., concurring) (citations omitted). To invoke our
jurisdiction, plaintiffs must satisfy the familiar tripartite test for Article III
standing: (A) an injury in fact; (B) that’s fairly traceable to the defendant’s
conduct; and (C) that’s likely redressable by a favorable decision. See Lujan
v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992); see also Env’t Tex. Citizen
Lobby, Inc. v. ExxonMobil Corp.,
968 F.3d 357, 367 (5th Cir. 2020) (“Because
this case was tried, Plaintiffs needed to prove standing by a preponderance of
the evidence.”). All three elements are missing here.
A.
Plaintiffs have not presented an injury in fact sufficient to satisfy
Article III. To establish such an injury, plaintiffs must show they “suffered
an invasion of a legally protected interest that is ‘concrete and particularized’
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and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.
Robins, 578 U.S. 330, 339 (2016) (quoting Lujan,
504 U.S. at 560). Plaintiffs
haven’t carried that burden here because (1) the injury they’ve alleged is not
a cognizable injury in fact, and (2) they may not relabel their injury as
something it’s not.
1.
Plaintiffs’ alleged injury is the increased risk they face of contracting
COVID-19 in school without mask mandates and experiencing complications
or severe symptoms from a COVID-19 infection. They rely on their doctors’
statements that “[i]n order to decrease [plaintiffs’] risk,” everyone around
them “should observe strict COVID-19 safety protocols and wear a mask
indoors.” Plaintiffs further contend that, without mask mandates, it is
“simply too dangerous” for them to attend in-person school.
To establish an injury in fact, plaintiffs must show an “invasion of a
legally protected interest” that is both “concrete and particularized” and
“actual or imminent, not conjectural or hypothetical.” Spokeo, 578 U.S. at
339 (quotation omitted). This circuit does not “recognize the concept of
probabilistic standing based on a non-particularized increased risk—that is,
an increased risk that equally affects the general public.” Shrimpers,
968 F.3d
at 424 (quotation omitted). And even where increased-risk claims are
particularized, they generally “cannot satisfy the actual or imminent
requirement,” which necessitates “evidence of a certainly impending harm
or substantial risk of harm.”
Ibid. (quotation omitted); see also Ctr. for
Biological Diversity v. EPA,
937 F.3d 533, 537 n.2 (5th Cir. 2019) (“[A]ny
difference between ‘certainly impending’ and ‘substantial risk’ is immaterial
here.”). That’s because “[m]uch government regulation slightly increases a
citizen’s risk of injury—or insufficiently decreases the risk compared to what
some citizens might prefer.” Shrimpers,
968 F.3d at 424 (quoting Pub.
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Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1295
(D.C. Cir. 2007)). And “[o]pening the courthouse to these kinds of
increased-risk claims would drain the ‘actual or imminent’ requirement of
meaning.” Ibid. (quoting Pub. Citizen, 489 F.3d at 1295).
Plaintiffs’ increased risk of contracting COVID-19 fails to satisfy these
requirements. There is no way to understand plaintiffs’ trial evidence as
establishing COVID-19 infections are “certainly impending” in schools
without mask mandates, but not in schools mandating masks. Shrimpers, 968
F.3d at 425. At the time of trial, two of plaintiffs’ seven schools were mask-optional (in compliance with GA-38), and five mandated masks (in violation
of GA-38). The two mask-optional schools had positivity rates of 1.9 and 3.0
percent. The five schools with mask mandates measured at 0.3, 1.1, 2.3, 4.9,
and 5.4 percent—higher, lower, and in between the rates from the mask-optional schools. Moreover, plaintiffs did nothing to control for their
schools’ various other efforts to reduce COVID-19 infections, and hence did
nothing to prove the relative efficacy of mask mandates in the five lawviolating schools. Cf. Dominguez v. UAL Corp.,
666 F.3d 1359, 1363 (D.C. Cir.
2012) (concluding antitrust plaintiff’s alleged injury was “speculative at
best” because it failed to take into account numerous variables at play);
Finkelman v. Nat’l Football League,
810 F.3d 187, 202 (3d Cir. 2016) (similar);
Bochese v. Town of Ponce Inlet,
405 F.3d 964, 985 (11th Cir. 2005) (holding
alleged injury did “not rise to the level of certainty required to establish an
injury in fact” where injury depended on a “series of substantial variables,
over which [the plaintiff] himself had utterly no control”); cf. also Simon v. E.
Ky. Welfare Rights Org.,
426 U.S. 26, 44 (1976) (“[U]nadorned speculation
will not suffice to invoke the federal judicial power.”); United Transp. Union
v. ICC,
891 F.2d 908, 915 (D.C. Cir. 1989) (“Any one of the factors discussed
above might be enough to place the petitioner’s allegation in the category of
unadorned speculation, and therefore to deny standing; taken together,
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petitioner’s claim of injury seems but a shadow in the mist.” (quotation
omitted)).
Plaintiffs’ risks of complications from COVID-19 likewise do not
satisfy Article III. Here too, plaintiffs lack evidence sufficient to show this
“allegation of future injury” is “certainly impending” as a result of GA-38.
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014); see also Whitmore
v. Arkansas,
495 U.S. 149, 158 (1990) (“[W]e have said many times before
and reiterate today: Allegations of possible future injury do not satisfy the
requirements of Art. III. A threatened injury must be certainly impending to
constitute injury in fact.” (quotation omitted)); Shrimpers,
968 F.3d at 424
(“[E]ven if a petitioner’s increased-risk harms are particularized, they also
must be actual or imminent.”). In light of widely available vaccines and the
schools’ other mitigation efforts, “the odds” of any particular plaintiff
contracting COVID-19 and subsequently suffering complications are
“speculative,” and “the time (if ever) when any such [infection] would occur
is entirely uncertain.” Pub. Citizen, 489 F.3d at 1293–94.
To be sure, “imminence” is “a somewhat elastic concept.” Lujan,
504 U.S. at 564 n.2; see also Ghedi v. Mayorkas,
16 F.4th 456, 465 n.36 (5th
Cir. 2021) (describing “imminence” as “an elastic concept that turns on a
sufficiently high degree of likelihood of future injury” (quotation omitted)).
But the concept “cannot be stretched beyond its purpose, which is to ensure
that the alleged injury is not too speculative for Article III purposes—that the
injury is certainly impending.” Lujan,
504 U.S. at 564 n.2 (quotation
omitted). And it “has been stretched beyond the breaking point where, as
here, the plaintiff alleges only an injury at some indefinite future time.” Ibid.;
see also Clapper v. Amnesty Int’l USA,
568 U.S. 398, 415 (2013) (rejecting
standing based on “fears of hypothetical future harm that is not certainly
impending”).
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Even the district court, which entered a permanent injunction against
enforcement of the Executive Order, could not say that GA-38 creates a
“certainly impending harm or substantial risk of harm” to plaintiffs.
Shrimpers, 968 F.3d at 424. Instead, the district court excused plaintiffs from
showing such proof. In the district court’s words, plaintiffs need not show
“enforcement of GA-38 will actually cause any of them to contract COVID
or that they would actually contract COVID in a mask-optional school
environment.” That conclusion is remarkable, and it squarely conflicts with
the precedents described above.
2.
Perhaps recognizing that the increased-risk claims face
insurmountable roadblocks, both the district court and plaintiffs attempted
to reframe the relevant injury. The district court, for example, characterized
the injury as “the deprivation of reasonable access to in-person schooling.” On
appeal, plaintiffs argue they are injured by “deprivation of access to in-person
schooling on an equal basis with their non-disabled peers.” And they contend
the “core” of their claimed equal-access injury is “denial of case-by-case
decisionmaking.” The dissent adopts this characterization. See post, at 5
(characterizing plaintiffs’ injury as being denied “an opportunity to
participate in public education . . . that is equal to that enjoyed by students
without disabilities”).
There are at least four problems with this approach. First, arguments
in favor of jurisdiction can be forfeited. Ctr. for Biological Diversity, 937 F.3d
at 542. At successive stages of this litigation, plaintiffs have changed their
standing theory from “increased risk” to “reasonable access” to “equal
access.” The forfeiture rules—which apply to arguments in favor of standing
as they do to other arguments in federal litigation, see ibid.—prohibit such
efforts to move the goalposts.
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Second, federal courts must consider plaintiffs’ actual injury—not the
labels plaintiffs put on that injury. As the leading treatise observes, the law of
standing is fraught with the danger that plaintiffs will engage in “artful
pleading” to make an end-run around the strictures of Article III. See R.
Fallon, J. Manning, D. Meltzer & D. Shapiro, Hart and
Wechsler’s The Federal Courts and the Federal System
124–25 (7th ed. 2015); Clapper, 568 U.S. at 401 (expressing concerns about
attempts to “manufacture standing” where injuries are otherwise too
speculative to satisfy Article III); see also Cass R. Sunstein, Standing and the
Privatization of Public Law,
88 Colum. L. Rev. 1432, 1464–65 (1988)
(“The central problem . . . is how to characterize the relevant
injury . . . . [Once] recharacterized, [otherwise-speculative] injuries are not
speculative at all.”).
Third, plaintiffs misunderstand the relevant legal question. What
matters for Article III is whether plaintiffs “suffered an invasion of a legally
protected interest.” Spokeo, 578 U.S. at 339 (emphasis added) (quotation
omitted). Neither the ADA nor Section 504 creates a legally protected
interest in equality simpliciter. Rather, those statutes legally protect reasonable
access to covered facilities and benefits. And they require covered entities to
facilitate such access by way of reasonable accommodations. So ADA
plaintiffs aren’t necessarily injured every time their method of access differs
from that of their non-disabled peers—they’re injured when they are denied
the reasonable access the statutes protect.
It’s no answer to say, as plaintiffs do, that they prefer one
accommodation to all others. It’s well settled that defendants—not
plaintiffs—get to choose between reasonable accommodation(s), and
plaintiffs’ preferences between reasonable accommodation(s) are irrelevant.
See, e.g., Cadena v. El Paso Cnty., 946 F.3d 717, 725 (5th Cir. 2020) (“[An
ADA defendant] is not required to acquiesce to [a plaintiff’s] choice of
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accommodations . . . . But it is required to provide her with reasonable
accommodations that give meaningful access to the benefit.” (quotation
omitted)). Take, for example, plaintiffs’ analogy to “a student who must rely
on a wheelchair.” In that situation, the school might accommodate the
student in a number of ways: it might install a lift, a ramp, or something else.
It can choose any reasonable one. The fact that a particular student prefers a
lift to a ramp is irrelevant, so long as the school picks a reasonable
accommodation that provides meaningful access.
So too here. All agree that plaintiffs have a legally protected interest
in reasonable access to their schools. And the schools, in turn, have numerous
alternatives for mitigating the risks of COVID-19 so plaintiffs have such
access. The schools can adopt policies regarding vaccines, plexiglass, hand
sanitizer, social distancing, and more. Plaintiffs have not even attempted to
show that one or any combination of these accommodations is insufficient to
mitigate the risks of COVID-19 to a level low enough that plaintiffs can attend
school. They have simply said that they prefer one accommodation—
masks—to all others. Therefore, they cannot show that they have suffered an
invasion of the legal interest the relevant statutes protect. 1
Fourth, there’s no basis for plaintiffs’ claim that GA-38 denies them
something the ADA guarantees—namely, the right to “individualized” or
“case-by-case decisionmaking.” It’s true that the ADA entitles disabled
students who inform their school of a disability to an “individualized
assessment” of their needs. It’s also irrelevant because the record contains
no evidence that any of these plaintiffs ever requested an accommodation
from anyone. See Windham v. Harris Cnty., 875 F.3d 229, 236–37 (5th Cir.
1
To the extent holding plaintiffs to their jurisdictional burden implicates the merits
of their ADA claims, the merits are relevant only insofar as they are “intertwined” with
plaintiffs’ theory of injury. See Brownback v. King, 141 S. Ct. 740, 749 (2021).
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2017) (“[B]ecause the ADA does not require clairvoyance, the burden falls
on the plaintiff . . . to request an accommodation in direct and specific
terms.” (quotation omitted)). Moreover, the record supplies no reason to
think any student would be denied such case-by-case determinations if
plaintiffs in fact requested them. Nor does GA-38 in any way prevent case-by-case decisionmaking. It simply eliminates one option—a mask mandate—
and retains all others. It is plainly within the State’s power to remove one
possible accommodation from consideration, so long as other reasonable
options remain. And it is transparently wrong to equate the State’s course of
action with “[d]enying the children individualized assessment of their
needs.”
Here, all agree plaintiffs have physical access to their classrooms. All
agree all seven schools take a multi-pronged approach to COVID-19
mitigation. All agree plaintiffs, their classmates, and their teachers are
welcome to wear masks and ask those around them to wear masks. All agree
plaintiffs presented zero evidence that anyone—let alone “individual[s]
working constantly with a disabled child,” post, at 1 n.1—would refuse a
request to wear a mask or take comparable safety measures while working
closely with a vulnerable student. And all agree at least some of the plaintiffs
are committed to attending in-person classes, whether or not their schools
mandate masks. Therefore, even if plaintiffs could recharacterize their injury
as denial of reasonable access to schools, plaintiffs failed to show they have
suffered or certainly will suffer such an injury.
B.
Even if plaintiffs could show injury in fact, they could not carry their
burden to establish traceability. Article III requires them to show “a causal
connection between the injury and the conduct complained of—the injury
has to be fairly traceable to the challenged action of the defendant, and not
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the result of the independent action of some third party not before the court.”
Lujan, 504 U.S. at 560 (quotation omitted); see also Ctr. for Biological
Diversity,
937 F.3d at 542. So plaintiffs must show a causal connection
between the Attorney General’s enforcement of GA-38 (the challenged
action) and their increased risk of contracting COVID-19 and suffering
complications (their asserted injury). 2
Where a suit challenges a government action regulating someone other
than plaintiffs themselves, it is “ordinarily substantially more difficult” to
establish the needed causal connection. Lujan, 504 U.S. at 562 (quotation
omitted). That’s because when the “asserted injury arises from the
government’s allegedly unlawful regulation . . . of someone else,” causation
will “ordinarily hinge on the response of the regulated (or regulable) third
party . . . and perhaps on the response of others as well.”
Ibid. That makes it
plaintiffs’ burden to show—with the same “manner and degree of evidence
required at the successive stages of the litigation”—that those regulated
third parties’ “choices have been or will be made in such a manner as to
produce causation.”
Id. at 561–62.
2
Plaintiffs wrongly contend that it’s the Attorney General’s responsibility to raise
traceability. “As the party invoking federal jurisdiction, the plaintiffs bear the burden of
demonstrating that they have standing.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207
(2021) (emphasis added). That means “arguments in favor of standing, like all arguments
in favor of jurisdiction, can be forfeited or waived.” Ctr. for Biological Diversity,
937 F.3d at
542 (emphasis added). But the same cannot be said for arguments against jurisdiction: Our
court, like every federal court, “has a continuing obligation to assure itself of its own
jurisdiction, sua sponte if necessary.” Green Valley Special Utility Dist. v. City of Schertz,
969
F.3d 460, 468 (5th Cir. 2020) (en banc) (quotation omitted); see also Steel Co. v. Citizens for
a Better Env’t,
523 U.S. 83, 93 (1998). That means even if the Attorney General had said
not a single word about traceability at any point in this case, we would be nonetheless
obligated to ensure plaintiffs have established the “irreducible constitutional minimum of
standing.” Lujan, 504 U.S. at 560–61. The dissent also misplaces the jurisdictional burden.
See post, at 10.
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This case demonstrates how heavy that burden is. Plaintiffs must
show, by a preponderance of the evidence, that the Attorney General’s
enforcement of GA-38 caused their injury. See Env’t Tex. Citizen Lobby, 968
F.3d at 367. But because GA-38 doesn’t regulate plaintiffs—it regulates the
school districts—plaintiffs must make an additional showing. Plaintiffs must
show (1) the Attorney General’s enforcement of GA-38 caused the school
districts to drop their mask mandates, and (2) plaintiffs’ increased-risk
injuries resulted from the school districts’ elimination of mask mandates. See
Lujan,
504 U.S. at 562; see also Babbitt v. Farm Workers,
442 U.S. 289, 298
(1979) (“A plaintiff who challenges a statute must demonstrate a realistic
danger of sustaining a direct injury as a result of the statute’s operation or
enforcement.” (emphasis added)).
Plaintiffs cannot come close to that showing. On the first point, it’s
undisputed the Attorney General’s enforcement activity did not cause five of
the seven plaintiffs’ schools to eliminate their masking requirements. As the
parties stipulated at the time of trial, those schools maintained their mask
mandates despite the Governor’s issuance of GA-38, despite receiving
“threatening letter[s]” from the Attorney General, and despite the Attorney
General actually suing some school districts. So at least with respect to five
of the plaintiffs’ schools, plaintiffs cannot establish the first link in the causal
chain: Their school districts refused to eliminate mask mandates, regardless
of what the Attorney General said or did.
But even if the Attorney General’s enforcement of GA-38 caused
plaintiffs’ schools not to mandate masks, plaintiffs still could not trace their
increased-risk injuries back to the Executive Order. As discussed in Part II.A,
supra, plaintiffs failed to identify any increased risk of contracting COVID-19
resulting from the prohibition on mask mandates, and any increased risk of
suffering complications from a hypothetical COVID-19 infection is even
more attenuated. But even assuming plaintiffs could show those increased
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risks, they could be attributed to any number of variables that have nothing
to do with mask mandates. Those include innumerable differences in the way
plaintiffs’ schools—each an independent actor—have chosen to address
COVID-19. See Clapper, 568 U.S. at 414 & n.5 (holding the uncontrollable
actions of independent third-parties make it difficult or impossible to trace
plaintiffs’ injuries to defendants’ conduct); see also
id. at 417 n.7 (“To the
extent that [plaintiffs’ predictions about how third parties will react] are
based on anything other than conjecture . . . they do not establish injury that
is fairly traceable [to the government’s action].”). Plaintiffs have done
nothing to control those independent variables.
All of this presumably explains why the entirety of the district court’s
factual finding on this point is this: “the use of masks may decrease the risk
of COVID infection in group settings.” 3 That finding fails to support
plaintiffs’ contention that mask mandates are the only way they can
adequately reduce the risks of COVID-19. It says nothing about allowing but
not requiring masks. It says nothing about masks’ relative efficacy vis-à-vis
other mitigation measures. And it says nothing about school environments
generally or plaintiffs’ schools specifically. It therefore warrants no weight.
See Int’l Energy Ventures Mgmt., LLC v. United Energy Grp., Ltd., 999 F.3d
257, 268 (5th Cir. 2021), cert. denied,
142 S. Ct. 2752 (2022) (mem.).
3
The dissent takes pains to “emphasize that this case was tried to the bench, and
the district court . . . entered detailed findings of fact.” Post, at 4. But neither the dissent
nor the plaintiffs identified factual findings other than this one, let alone multiple
“detailed” factual findings. See Oral Arg. at 24:40–26:35 (responding to request to identify
relevant factual findings in the district court opinion, plaintiffs’ counsel pointed to the
court’s finding that “the use of masks may decrease the risk of COVID infection in group
settings”).
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C.
Even if plaintiffs could meet their burden on injury in fact and
traceability, they still would not be able to show their injuries are likely
redressable by a favorable decision.
As with traceability, when an asserted injury arises from the
government’s regulation of someone other than the plaintiffs, “redressability
[will] ordinarily hinge on the response of the regulated (or regulable) third
party.” Lujan, 504 U.S. at 562. And that makes a plaintiff’s choice of
defendant especially important. Because if they don’t sue the regulated third
party, they leave redressability to turn on “the unfettered choices made by
independent actors not before the courts and whose exercise of broad and
legitimate discretion the courts cannot presume either to control or predict.”
Ibid. (quotation omitted). And whether or not they bring the regulated parties
before the court, plaintiffs’ redressability burden remains the same: They
must at least show that the regulated parties “will likely react in predictable
ways.” California v. Texas,
141 S. Ct. 2104, 2117 (2021) (quotation omitted).
“Plaintiffs cannot rely on speculation” about the choices the regulated
parties might make. Clapper,
568 U.S. at 414 n.5 (quoting Lujan,
504 U.S. at
562).
Here, plaintiffs rely wholly on speculation about the unfettered
choices made by actors not before our court. Plaintiffs chose not to sue their
school districts. The school districts have the unfettered choice—with or
without GA-38, and with or without any involvement by the Attorney
General—to drop their mask mandates at any time. And indeed they have.
None of plaintiffs’ schools require masks today. And we could not enjoin
those schools to impose mask mandates if we wanted to because plaintiffs did
not sue them. That alone proves that plaintiffs’ claims are not redressable.
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Plaintiffs chose instead to sue the Attorney General. And what does
the Attorney General have to do with plaintiffs’ increased risks from
COVID-19? Nothing. He does not set masking policies. Nor can he order the
school districts to adopt masking policies (as evidenced by several schools’
refusals to abide by GA-38 or the Attorney General’s threatened
enforcement of it). And even if we affirmed the district court’s permanent
injunction against the Attorney General, the school districts could drop (and
as noted above, have dropped) their mask mandates anyway. That would
expose plaintiffs to the exact same risks they otherwise impute to GA-38, and
no amount of equitable relief against the Attorney General will redress
anything.
Plaintiffs effectively concede this point by arguing not that an
injunction against the Attorney General would redress their injuries, but
rather that an injunction would “clear[] the way” to allow third parties
(namely, their schools) to redress their injuries. 4 But that’s not how
redressability works. For example, in Okpalobi v. Foster, 244 F.3d 405 (5th
Cir. 2001) (en banc), abortionists sought a declaration that a provision of
Louisiana law was unconstitutional because it authorized private suits in
violation of the Fourteenth Amendment. We held that plaintiffs’ purported
injuries could not be redressed by an order against defendants—the
Governor and the Attorney General—who had no power over the third
parties who might bring suits. See
id. at 426–27. It was irrelevant there, as
here, that an order in plaintiffs’ favor might clear the way for them to
vindicate their rights against non-parties. See
id. at 453 (Parker, J.,
dissenting).
4
At trial, plaintiffs argued that “but for GA-38, these seven schools would have a
universal mask mandate.” Plaintiffs have not made that argument on appeal.
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It is no answer to say, as plaintiffs do, that a permanent injunction
against the Attorney General partially redresses their injuries and hence
satisfies the Article III minimum. It’s true that a partial remedy is
constitutionally sufficient. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801
(2021) (recognizing nominal damages as sufficient to satisfy redressability
requirement despite not providing “full redress”). It’s also irrelevant here.
Even with the district court’s robust injunction against the Attorney General,
all seven of the plaintiffs’ schools could—and in fact did—eliminate their
mask mandates. Thus the injunction is not a partial remedy of their alleged
injuries; it’s no remedy at all.
…
Finally, a word about the scope of plaintiffs’ theory of injury and the
limitlessness of the dissent. According to plaintiffs and our esteemed
colleague in dissent, Article III of the Constitution gives plaintiffs standing to
demand court-created mask-mandate bubbles. This case involves schools.
But plaintiffs’ theory, shared by the dissent, would reach every property
covered by the ADA and Section 504. Restaurants, movie theaters, libraries,
hotels, grocery stores, you name it. It would require federal courts to enforce
mobile mask mandates that go where plaintiffs go and require everyone
around them to wear masks.
That theory of standing is equal parts sweeping and unprecedented.
Today we reject it. The district court’s injunction is VACATED, and the
case is REMANDED with instructions to DISMISS the case for lack of
jurisdiction.
16
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No. 21-51083
W. Eugene Davis, Circuit Judge, dissenting:
The parents of seven severely disabled children, highly susceptible to
contracting COVID-19, brought this straightforward disability
discrimination lawsuit against defendant-appellant, Texas Attorney General
Kenneth Paxton (“Paxton”). They sought to enjoin Paxton’s aggressive
enforcement of Executive Order GA-38 which on its face prohibited the
school districts from imposing even a limited mask mandate as an
accommodation under Section 504 of the Rehabilitation Act (“RA” or
“Section 504”) and Title II of the Americans with Disabilities Act (“ADA”
or “Title II”) to protect these children. The injunction issued by the district
court does not require the school districts to impose a mask mandate; it
simply gives them the power to do so if they find plaintiffs (or any of them)
are unable to attend in-school classes without even a limited mask mandate. 1
Based on GA-38 and Paxton’s enforcement of it, plaintiffs contend that they
are effectively excluded from in-school classes because of their disabilities
and the dire consequences they face if they contract COVID-19. More
specifically, based on unchallenged evidence, they established that without
some type of mask mandate, they cannot attend classes during the pandemic,
and they are unfairly deprived of the valuable benefit of attending school, in
violation of Section 504 and the ADA. Because the district court found
uncontradicted evidence that the defendant’s enforcement of GA-38 was the
only impediment to a school district’s granting a modification required by
Section 504 and Title II to allow plaintiffs to attend school safely, the
injunction was appropriate.
1
To be clear, the sweeping order prevents the school districts from granting a
modification, for example, to require an individual working constantly with a disabled child
to wear a mask. Similarly, a mask mandate limited to staff members working in one room
or wing of the school with disabled children would violate GA-38.
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No. 21-51083
The majority found plaintiffs had no standing based in part on their
erroneous assumption that plaintiffs had brought a simple “fear of COVID-
19” case rather than the disability discrimination case that they pled and
tried. In my view, plaintiffs proved each element of standing, and I strongly
disagree with the majority’s contrary conclusion. Further, I conclude that
the district court correctly issued the injunction against the defendant’s
enforcement of GA-38.
I.
Plaintiffs-appellees, E.T., J.R., S.P., M.P., E.S., H.M., and A.M., are
children with disabilities who attend public schools in Texas. The children’s
disabilities include Down syndrome, asthma, hypogammaglobulinemia, CD
19 deficiency, growth hormone deficiency, attention deficit hyperactivity
disorder, bronchiectasis, spina bifida, epilepsy, heart defects, and cerebral
palsy. Because of their disabilities and based on the testimony of their
personal physicians, the district court found that because of their heightened
susceptibility of contracting COVID-19 and, if contracted, a heightened risk
of severe illness or death from it, the children could not safely attend school
where they would be in close proximity to unmasked students or staff
members.
On July 29, 2021, Texas Governor Greg Abbot issued GA-38, which
bars any state entity, including school districts, from requiring that any
individual wear a mask. After Governor Abbott issued GA-38, Paxton
undertook a campaign against Texas’s independent school districts
(“ISDs”) threatening to enforce the Order. His office sent at least 98 letters
to different ISDs, filed 15 separate lawsuits, and made public statements on
Twitter expressing his willingness to continue litigating against non-compliant ISDs. Further, under Paxton’s instructions, the Texas Education
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No. 21-51083
Authority (“TEA”), maintained a public list of non-compliant ISDs on its
website.
Plaintiffs filed a complaint in district court on August 17, 2021. They
alleged that GA-38 prevents school districts from imposing mask mandates
as a reasonable modification for plaintiffs and other students with disabilities
who are at greater risk of contracting COVID-19 and suffering severe illness
or death as a result of the disease. They asserted disability discrimination
claims under Title II of the ADA and Section 504 of the RA. Plaintiffs
contend that Paxton directly discriminated against them on the basis of their
disabilities, and/or indirectly caused their ISDs to discriminate against them
on the basis of their disabilities. Plaintiffs sought declaratory and injunctive
relief to bar Paxton’s enforcement of GA-38.
After a bench trial, the district court concluded, as relevant here, that
GA-38 is preempted “to the extent that it interferes with local school
districts’ ability to satisfy their obligations under the ADA and Section 504
and their implementing regulations.” The court recognized that the ADA
and Section 504 impose “an affirmative obligation [on public entities] to
make reasonable modifications in their policies, practices, or procedures
when necessary to avoid discrimination on the basis of disability, unless they
can show that so doing would fundamentally alter the nature of the service,
program, or activity.” 2 The court found that GA-38 prohibits the use of mask
mandates, including targeted and limited ones, even when a school district
determines that “requiring masks is a reasonable modification necessary to
enable a student with disabilities to have equal access to a safe, integrated, in-person learning environment.”
2
See 28 C.F.R. 35.130(b)(7)(i).
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Accordingly, the district court concluded that “to the extent that
school districts cannot comply with GA-38’s ban on mask requirements and
at the same time meet their obligations under the ADA and Section 504, the
ADA and Section 504 supersede any conflicting provisions of GA-38.” To
that end, the court issued a final judgment declaring, in relevant part, that
GA-38’s ban on mask mandates as applied to school districts is preempted by
Title II and Section 504, and enjoining Paxton and his office from enforcing
GA-38 as applied to school districts.
II.
At the outset, I emphasize that this case was tried to the bench, and
the district court, based on essentially uncontradicted evidence, entered
detailed findings of fact. The plaintiffs produced evidence from their
personal physicians attesting to plaintiffs’ severe disabilities and giving their
strong opinions that, because of their disabilities, they should not attend
classes where students and staff they were near were not wearing masks.
They testified that when the action was filed and tried, the plaintiffs were not
eligible for vaccinations against COVID-19 and that in any event no option
except requiring staff and students in contact with them to wear masks would
give plaintiffs adequate protection from COVID-19 given the dire
consequences plaintiffs could suffer. Plaintiffs also produced evidence that
the schools they attended had mask mandates in place until GA-38 was
issued, and the defendant began aggressively threatening the ISDs with
lawsuits and fines if they required students and staff to wear masks.
The majority holds that plaintiffs failed to establish standing. Judge
Oldham, the writing judge, concluded that plaintiffs established none of the
elements of standing: injury, traceability, and redressability. Judge Willett
agreed their injury is not redressable; in effect, finding that plaintiffs should
20
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No. 21-51083
have sued the ISDs, not Paxton. In my view, plaintiffs alleged and proved
each element of standing.
A.
As an initial matter, the writing judge mischaracterized plaintiffs’
claimed injury as an “increased risk of contracting COVID-19.” 3 This
characterization of plaintiffs’ claimed injury ignores the claim alleged and
tried: that Paxton’s conduct caused disability discrimination. Plaintiffs’
theory has always been that Paxton’s enforcement of GA-38 qualifies as
disability discrimination that is prohibited by the ADA and RA.
Plaintiffs proved that they have been, or imminently will be, injured
by GA-38’s ban of mask requirements, because that ban denies them an
opportunity to participate in public education—in which they have a legally
protected interest 4—that is equal to that enjoyed by students without
disabilities. While all students bear some health risks by attending school in
person during the ongoing pandemic, the district court found, and it is
undisputed, that these plaintiffs face a much higher risk to their health
because of their disabilities. Plaintiffs presented evidence that they each
require mask mandates to remain safe while they are indoors, and defendant
neither challenged that evidence nor offered credible evidence of another
effective option that would protect them. 5 Despite this, defendant is
aggressively enforcing GA-38, which forbids school districts from requiring
masks as a reasonable modification—no matter the circumstances—and
3
To support his conclusion that this is a “fear of COVID-19” case, the writing
judge relies on Shrimpers & Fishermen of RGV v. Texas Comm’n on Env’t Quality, 968 F.3d
419, 424 (5th Cir. 2020) (per curiam).
4
See Goss v. Lopez, 419 U.S. 565, 574 (1975).
5
The only evidence the defendant offered was a mass of raw data showing COVID-
19 positivity rates in Texas public schools.
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No. 21-51083
instead relegates plaintiffs to taking their classes remotely, rather than
accepting a greater risk to their health and safety by going to school.
Two plaintiffs have already suffered this injury: both M.P. and E.S.
are enrolled in schools that rescinded their masking requirements in response
to GA-38, although at time of filing their ISDs had not rescinded their mask
mandates. The remaining five plaintiffs’ injuries were imminent. Their
injuries were “certainly impending”— that is, that there was a “substantial
risk that the harm [would] occur.” 6 And although several of plaintiffs’ school
districts had mask mandates in place at the time of trial, they were vulnerable
to the sting of civil sanctions defendant threatened them with. 7 Plaintiffs have
sufficiently demonstrated a substantial risk of injury.
All these vulnerable students are suffering (or are at substantial risk of
suffering) an injury sufficient to confer standing: if they choose in-person
school, they are compelled to accept a far higher risk to their health than is
required of students without disabilities. 8 These students need not prove that
access to school is impossible; it is enough that GA-38 removes the tool that
6
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citation and internal
quotation marks omitted).
7
See Brackeen v. Haaland, 994 F.3d 249, 371 n.17 (5th Cir. 2021) (en banc), petition
for cert. pending, Nos. 21-380, 21-376, 21-378 (filed Sept. 8, 2021).
8
This injury is obviously concrete. The Supreme Court has instructed that, to
determine whether an injury is concrete, courts must ask whether the asserted injury has
“a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in
American courts.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021) (citing
Spokeo, Inc. v. Robins,
578 U.S. 330, 341 (2016)). And, this injury could not be more
personal—it prevents each plaintiff from attending school with their classmates, a
recognized harm.
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No. 21-51083
the record shows would afford them an opportunity to participate in in-person schooling equal to that enjoyed by students without disabilities. 9
In short, plaintiffs have satisfied Article III’s injury requirement. The
discriminatory denial of equal access to education is a concrete harm, is
particularized to each plaintiff, and has actually materialized.
B.
Paxton did not challenge traceability in his brief to this Court, for good
reason; plaintiffs clearly established traceability. Under this element,
plaintiffs must show “a causal connection between the injury and the
conduct complained of—the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent action of some
third party not before the court.” 10 But Article III requires only “de facto
causation.” 11
At trial, plaintiffs introduced uncontroverted evidence that
establishes traceability for at least one plaintiff, which is all that is required
for standing. 12 Specifically, M.P. attends school in Fort Bend ISD
(“FBISD”), which dropped its mask mandate by the time trial occurred.
Plaintiffs submitted an affidavit by Dennetta Williams, an elected member of
FBISD’s Board of Trustees, who attested that “[t]he FBISD mask mandate
would remain in place but for [Paxton’s] enforcement of GA-38.” This
9
See 28 C.F.R. § 35.130(b)(1)(i)-(iii).
10
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (emphasis added and cleaned
up).
11
Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019).
12
See McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 471 (5th Cir. 2014)
(“It is well settled that once we determine that at least one plaintiff has standing, we need
not consider whether the remaining plaintiffs have standing to maintain the suit.”).
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evidence is sufficient to establish that Paxton’s enforcement efforts were the
de facto cause of M.P.’s injury.
Moreover, even though five ISDs had not yet lifted their mask
mandates on the day of the trial, it was manifestly predictable that they
would. Paxton, the State’s highest law enforcement authority, exerted
extraordinary pressure on the non-compliant ISDs. As discussed, Paxton sent
threatening letters, made threatening tweets, and filed lawsuits against 15
different ISDs to enforce GA-38. The “predictable effect” of Paxton’s
enforcement activity was that ISDs would drop their mask mandates. 13
Indeed, as of now, none of the seven ISDs have mask mandates.
Based on Williams’ affidavit and the predictable effect of Paxton’s
enforcement efforts on non-compliant ISDs, I would affirm the district
court’s finding that plaintiffs’ injuries are fairly traceable to Paxton’s
conduct.
C.
To establish the final element of standing, redressability, plaintiffs
must show that it is “likely, as opposed to merely speculative, that a favorable
decision will redress” their injury. 14 The redressability requirement is met
when “a favorable decision will relieve a discrete injury” to the plaintiffs. 15
They “need not show that a favorable decision will relieve [their] every
injury.” 16 Plaintiffs satisfied these requirements.
13
Dep’t of Com., 139 S. Ct. at 2566.
14
Dep’t of Texas, Veterans of Foreign Wars of U.S. v. Texas Lottery Comm’n, 760 F.3d
427, 432 (5th Cir. 2014) (quoting S. Christian Leadership Conference v. Supreme Court of
State of La.,
252 F.3d 781, 788 (5th Cir.2001)).
15
Id. (quoting K.P. v. Leblanc, 627 F.3d 115, 123 (5th Cir. 2010)).
16
Id. (emphasis in original).
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First, plaintiffs sued Attorney General Paxton, the official who was
actively enforcing GA-38, to get the relief they required. Also, contrary to
what the majority says, plaintiffs do not rely on “speculation” that school
districts will impose mask mandates if Paxton is enjoined. Instead, plaintiffs
submitted uncontroverted evidence establishing that at least one ISD would
immediately reinstate its mask mandate if Paxton is enjoined. In particular,
plaintiffs rely on the affidavit by Williams, who attested that “if [Paxton]
stopped enforcing GA-38, or there is an order barring enforcement of GA-38,
the FBISD mask requirement would immediately go back into effect.”
The unchallenged evidence also reflected that all the districts had
mask mandates in place when GA-38 issued. The defendant produced no
evidence that any of the school districts ever had opposition to the mask
mandates in place. It was only after GA-38 issued and Paxton’s enforcement
activity began that school districts began yielding to those threats and began
lifting their mandates. If this Court affirms the district court’s injunction and
holds that Section 504 and Title II required that school districts be allowed
to exercise their discretion as to each individual plaintiff and provide an
appropriate modification, it is completely predictable that the school districts
would comply with the law by imposing some type of mask mandate. GA-38
does not permit the school districts to do this. As the Supreme Court
explained in Department of Commerce v. New York, plaintiffs can properly rely
on the “predictable effect of government action on the decisions of third
parties” as an element of their standing. 17
Based on this evidence, if this Court upholds the injunction against
Paxton (which was stayed after three weeks by a motions panel of this
17
139 S. Ct. at 2566; see Franklin v. Massachusetts,
505 U.S. 788, 790–91 (1992)
(finding redressability prong satisfied where actors who were not parties to the lawsuit
could be expected to amend their conduct in response to a court’s declaration).
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No. 21-51083
Court 18), FBISD and the other school districts would likely reimpose their
mask mandates as necessary to grant a modification so that plaintiffs could
safely attend school with their classmates. As a result, plaintiffs would no
longer face the Hobson’s choice of either taking inadequate virtual classes,
or attending school without a mask mandate despite the medical advice of
their doctors.
The district court recognized that ISDs could refuse to impose mask
mandates if such mandates “fundamentally alter[ed]” the nature of school
programs. 19 But, as the district court correctly noted, Paxton “failed to
present any evidence that would support a claim that mask requirements
fundamentally alter the educational programs of local school districts.” 20
Paxton had an opportunity to challenge the reasonableness of mask
mandates—or show the availability of other measures—but he utterly failed
to do so. In fact, during the proceedings below, Paxton submitted a single
piece of evidence: a mass of raw data showing COVID-19 infection numbers
in Texas public schools. He did not even provide an expert opinion to assist
the district court or this Court in interpreting the data. Paxton’s decision not
to produce evidence should be fatal to his arguments. Thus, on the facts
before this Court, federal law obligates ISDs to impose the mask mandates
that GA-38 forbids. It is therefore certain, not speculative, that an injunction
against Paxton would remedy plaintiffs’ harm.
18
See E.T. v. Paxton, 19 F.4th 760, 763 (5th Cir. 2021).
19
Under the ADA’s implementing regulations, a public entity need not provide a
modification, even if it is “reasonable,” when it “fundamentally alters” the nature of the
service, program, or activity. 28 C.F.R. § 35.130(b)(7)(i).
20
E.T. v. Morath, No. 1:21-CV-717, 2021 WL 5236553, at *13 (W.D. Tex. Nov. 10,
2021).
26
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In sum, the disability discrimination plaintiffs suffered is a sufficient
injury. Paxton’s enforcement activity was the de facto cause of this
discrimination, and an injunction would remedy the injury. For these
reasons, I am satisfied that plaintiffs established each element of standing. 21
III.
As to the merits, I would affirm the district court’s injunction to the
extent it bars Paxton’s enforcement of GA-38 against plaintiffs’ ISDs and
prevents the ISDs from granting even a limited mandate that would allow
plaintiffs to attend school.
As the district court recognized, Title II and Section 504 and their
implementing regulations place an “affirmative obligation” on public entities
to make reasonable modifications in their policies and practices when
necessary to avoid discrimination because of disability. 22 Texas school
districts are subject to Title II and Section 504 as public entities that receive
21
In a Rule 28(j) letter to this Court, defendants cite Arc of Iowa v. Reynolds, 33
F.4th 1042, 1044 (8th Cir. 2022), in which the Eighth Circuit found that a similar case was
moot because of the lessened severity of the COVID-19 pandemic. However, as plaintiffs
argue in a different Rule 28(j) letter, the Center for Disease Control (“CDC”) continues
to recommend that people around vulnerable individuals, like plaintiffs, wear masks. Based
on the ongoing nature of the pandemic, and that the CDC continues to recommend
masking around vulnerable individuals, this case is not moot.
22
See Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 445-55 (5th Cir.
2005), cert. denied,
547 U.S. 1098 (2006); see also Ridley Sch. Dist. v. M.R.,
680 F.3d 260,
281 (3d Cir. 2012) (requiring students to wash their hands before and after meals to protect
on student in their classroom with severe food allergies); Alboniga v. School Bd. of Broward
Cnty.,
87 F. Supp. 3d 1319, 1323, 1344-45 (S.D. Fla. 2015) (allowing a service animal to
accompany a student with a seizure disorder); K.N. v. Gloucester City Bd. of Educ.,
379 F.
Supp. 3d 334, 352 (D.N.J. 2019) (providing a one-to-one aide supported by a special
education teacher to assist a student with autism).
27
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No. 21-51083
federal funding. 23 GA-38 bars a school district from imposing even a limited
mask requirement and must fall. 24
Plaintiffs established and the district court found from unchallenged
evidence that voluntary masking does not adequately protect plaintiffs.
There is no basis from this record that vaccination, social distancing, and/or
plexiglass can adequately substitute for masking to protect plaintiffs.
Uncontradicted evidence supports the district court’s finding that masks are
necessary.
However, I agree with Paxton that the district court’s injunction is
overbroad. An injunction “should be no more burdensome to the defendant
than necessary to provide complete relief to the plaintiffs.” 25 Plaintiffs’
injuries would be remedied by a narrow injunction that prohibits Paxton from
enforcing GA-38 against the seven ISDs in which plaintiffs attend schools to
the extent that GA-38 bars the school districts from granting an
accommodation under Section 504 and Title II by requiring some form of
mask mandate. The injunction should be limited accordingly.
For the foregoing reasons, I would affirm the district court’s decision
to enjoin Paxton’s enforcement of GA-38. However, because the injunction
is overbroad, I would vacate the injunction and remand so that the district
court can modify the injunction to bar Paxton from enforcing GA-38 against
the seven ISDs plaintiffs attend but limit it to the extent that it precludes
school districts the authority to grant a limited mask mandate to allow the
23
42 U.S.C. § 12131(1)(B);
29 U.S.C. § 794(b)(2)(B).
24
See Mary Jo C. v. New York State & Loc. Ret. Sys., 707 F.3d 144, 163 (2d Cir 2013);
see also North Carolina State Bd. Of Educ. v. Swann, 402 U.S.43, 45 (1971).
25
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994).
28
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plaintiffs to attend school safely. Therefore, for these reasons, I respectfully
dissent.
29
