(Story written by Jacob Lehrer)

Governor Abbott won a huge victory in his stance against mask mandates last month after a ruling by the US 5th Circuit Court of Appeals. Last year governor Abbott issued Executive Order G8-38 which stated, “No governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face covering or to mandate that another person wear a face covering.”

However, a District Judge in July blocked the order after a lawsuit was filed under the notion that it violated The Americans with Disabilities Act (ADA), The Rehabilitation Act, and the American Rescue Plan (ARP). The District Judge ruled that G8-38 did violate these laws, and hindered students with disabilities (immunity compromises or comorbidities) from going to public school due to a removal of mask mandates.

Texas Attorney General Ken Paxton filed to the US 5th Circuit Court of Appeals, which ruled the plaintiffs could not show a direct injury that the lack of mask mandates would be the sole cause of getting COVID-19 in public schools. “The plaintiffs could not show sufficient injury: “To establish such an injury, plaintiffs must show they “suffered an invasion of a legally protected interest that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”

In order to have a case of injury, the plaintiffs had to show that they were unequally impacted by the executive order and that it would lead to an injury. The Appeals court noted that the plaintiffs never sought remedies, nor accommodations, from the schools, but instead directly sued the Governor and the TEA. Using the ADA and ARP, the plaintiffs would have to show that they cannot access their schools.

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.

The plaintiffs were still equally given access to schools under those laws the same as their peers and, the Appeals Court ruled that the plaintiff’s injury was more about their preference on mitigating Covid-19.

“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.”

The plaintiffs came from seven different schools that differed in the amount of Covid cases. Five of the schools required masks and the other two were mask-optional. What the Appeals court found was no significant difference between schools that have mask mandates in schools that do not have mask mandates.

“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 law- violating schools.”

The plaintiffs can still wear masks in schools and there are many variables from slowing the spread of COVID-19 that the Court showed. Among a few are hand sanitizer, plexiglass cubes, the availability of vaccinations and social distancing. It was not enough to show that one variable, that does not even remove masks from schools, was not sufficient to show a future hypothetical effect.

“[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.”

The executive order now stands and prohibits Texas public schools from imposing mask mandates, along with other government entities. Texas schools have many other variables and options to go by and students are still free to wear masks or not wear masks. The executive order is more on personal preference and does not hinder anyone from accessing public schools and gives equal access across the spectrum of students.