Appeals court blocks federal judge's ruling that allowed Texas schools to mandate masks

A federal appeals court has blocked a federal judge's ruling that allowed Texas school districts to impose mask mandates on students, staff and campus visitors.

U.S. District Judge Lee Yeakel of Austin ruled last month that Gov. Greg Abbott cannot enforce GA-38, his executive order banning mask mandates in public schools, because it puts children with illnesses and disabilities at risk of contracting COVID-19 to get the benefits of in-person education.

Read more:Federal judge blocks Gov. Abbott's ban on mask mandates in schools

But the 5th U.S. Circuit Court of Appeals put Yeakel's order on hold while its judges consider Texas Attorney General Ken Paxton's appeal to overturn the decision.

A three-judge panel of the appeals court, in a ruling issued Wednesday evening, said Yeakel focused on a "false" choice facing the children's parents. 

"The binary choice envisioned by the district court — either stay home or catch COVID-19 — is a false one: it wholly elides the various accommodations available to the plaintiffs (e.g., distancing, voluntary masking, class spacing, plexiglass, and vaccinations) to ensure a safer learning environment, regardless of GA-38’s prohibition of local mask mandates," the panel said.

Injunctions such as the one issued by Yeakel require plaintiffs to show that GA-38 creates an actual or imminent injury, but "given the other preventative measures available to plaintiffs and the schools they attend, any injury-in-fact arising from the enforcement of GA-38 appears speculative or tentative," the appeals court said.

Texas Attorney General Ken Paxton praised the ruling, saying it affirmed that Abbott's ban on mask mandates remains the law in Texas. On Twitter, the governor called the ruling "great news" and thanked Paxton for his efforts.

A lawyer for Disability Rights Texas, which challenged Abbott's ban on behalf of seven students with Down syndrome, asthma, cerebral palsy, heart defects and other conditions, said he looked forward to presenting their case as Paxton's appeal progresses.

"Our suit has always been about allowing students with disabilities at high risk of COVID to attend schools in person as safely as possible," said Dustin Rynders, the organization's supervising attorney.

"As new COVID variants threaten to make an improving situation worse again, it is imperative schools have the option of requiring masks in the class, campus or district as needed to protect vulnerable students," Rynders added.

'Other means exist' to control pandemic

In his injunction barring enforcement of the ban on mask mandates in schools, Yeakel said the evidence shows that wearing masks can decrease the risk of spreading COVID-19 — a particularly useful strategy for children with disabilities who can be at higher risk of contracting the respiratory disease and suffering severe symptoms that require hospitalization.

But the appeals court panel disagreed with Yeakel's conclusion that Abbott's ban would make it impossible for school districts to comply with the Americans with Disabilities Act or a federal law that prohibits discrimination based on disabilities.

Related coverage:Is Abbott misusing his disaster powers in fight against mask and vaccine requirements?

"Other means exist to control the spread of COVID-19 in school settings like vaccination, social distancing, plexiglass, and voluntary mask wearing," the panel said. "Plaintiffs are not entitled to their preferred accommodation ... if other reasonable accommodations are available."

All three judges on the panel were appointed by Republican presidents. Judge Cory Wilson, the opinion's author, was appointed by former President Donald Trump, as was Judge Andy Oldam, while Judge Jennifer Walker Elrod was nominated by former President George W. Bush.

Abbott ban also challenged in state courts

Abbott's July 29 executive order — which also bans mask mandates by cities, counties and public health officials — is being challenged in state courts as well, with several trial judges across Texas blocking enforcement of GA-38, prompting appeals by Paxton in at least three intermediate appellate courts.

Last week, the Dallas-based 5th Court of Appeals ruled against Paxton, saying Dallas County Judge Clay Jenkins had the authority to require mandatory face coverings as a pandemic safety measure. 

The appeals court rejected arguments that the Texas Disaster Act gives Abbott the power to issue directives that have the force and effect of law, overruling local health standards.

The Disaster Act "does not give the governor carte blanche to issue executive orders empowering him to rule the state in any way he wishes during a disaster," the court said.

While the Disaster Act lets Abbott suspend rules that "prevent, hinder, or delay necessary action in coping with a disaster," the mask mandate imposed earlier this year by Jenkins did nothing to get in the way of the state response to COVID-19, the court said.

"Arguably, the evidence shows the opposite — that by imposing a face covering mandate, Jenkins furthered Abbott’s stated goals to preserve livelihoods and protect lives," the court ruled. 

"The evidence presented by Jenkins shows that masks are the most effective nonpharmacological tool for reducing the transmission of COVID-19," the court said, adding that voluntary masking does not produce the same results.

A similar ruling came Nov. 10 from the San Antonio-based 4th Court of Appeals, which upheld mask mandates by San Antonio and Bexar County.

Other cases are awaiting rulings by the Austin-based 3rd Court of Appeals, where Paxton is challenging trial court orders that allowed mask mandates in Harris County and in a number of school districts, including Austin's.

Regardless of how the 3rd Court rules, all of the cases are heading toward the Texas Supreme Court, which will have the final say over the issue.

According to the attorney general's website, Paxton's office no longer provides public access to its list of school districts and local governments that have imposed mask mandates.

When last accessed in early November, the list included 62 school districts and eight public charter schools with mask mandates that Paxton was seeking to overturn. Paxton's agency did not respond to questions about why public access to the list was no longer available.