A federal appeals court has ruled Governor Greg Abbott does have the authority to ban school mask requirements. The 2-1 ruling overturned a lower court's injunction.
A group of students had sued, and in November of 2021, a U.S. district court judge issued an injunction blocking the governor and Texas attorney general from enforcing a ban on school mask mandates. In December, the 5th Circuit Court of Appeals blocked enforcement of the injunction while it reviewed the case.
Monday, the court ruled against the students who had filed the suit.
Lawyers for the students argued students faced an increased risk of contracting COVID-19 in schools without a mandate. They said that also led to an increased risk of complications or severe symptoms of COVID-19, citing statements from doctors saying observing "strict COVID-19 safety protocols" can decrease a person's risk.
"Plaintiffs further contend that, without mask mandates, it is 'simply too dangerous' for them to attend in-person school," judges wrote in the ruling.
But the judges in the majority opinion, Andrew Oldham and Don Willett, said lawyers must show a "concrete and particularized" risk that is "actual or imminent, not conjectural or hypothetical."
The majority ruling read that the lawsuit did not satisfy requirements.
Students who had sued attended seven schools. The ruling said two schools were mask-optional and had positivity rates of 1.9% and 3.0%. The ruling said the five schools where masks were required had positivity rates of 0.3%, 1.1%, 2.3%, 4.9% and 5.4%, "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."
In his dissent, Judge Eugene Davis wrote parents of seven "severely disabled children, highly susceptible to contracting COVID-19" had brought forward a "straightforward disability discrimination lawsuit" against Texas Attorney General Ken Paxton. He wrote the injunction issued by the lower court did not require schools 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."
Davis said the plaintiffs used "unchallenged evidence" to show that without some type of mandate, they could not attend classes during the pandemic, "and they are unfairly deprived of the valuable benefit of attending school, in violation of Section 504 and the [Americans with Disabilities Act]."