E.T. v. Paxton, No. 21-51083 (5th Cir. 2021)
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The Fifth Circuit granted the Texas Attorney General a stay pending appeal of the permanent injunction that bars him from enforcing Texas Governor Greg Abbott's Executive Order GA-38, which prohibits local governmental entities from imposing mask mandates.
After determining that plaintiffs have likely failed to demonstrate standing, the court concluded that the Attorney General has demonstrated a strong likelihood of success on the merits as a matter of law. In this case, the district court lacked jurisdiction over plaintiffs' claims where plaintiffs have not exhausted their administrative remedies under the Individuals with Disabilities Education Act (IDEA). Furthermore, even if a failure to exhaust remedies does not bar plaintiffs' claims, plaintiffs likely failed to make out a prima facie case under the Americans with Disabilities Act (ADA) or the Rehabilitation Act. The court explained that, given the availability of vaccines, voluntary masking, and other possible accommodations, the record before the court likely does not support the conclusion that a mask mandate would be both necessary and obvious under the ADA or the Rehabilitation Act. The court also held that it was likely erroneous for the district court to hold that GA-38 was preempted by either the ADA or the Rehabilitation Act. To the extent that it is even properly before the court, the court did not read the American Rescue Plan Act to preempt GA-38's prohibition of local mask mandates, as the district court did. The court further concluded that, assuming plaintiffs' claims are otherwise viable, at a minimum, the district court's blanket injunction prohibiting the enforcement of GA-38 in all public schools across the State of Texas is overbroad. Finally, the court concluded that the Attorney General has demonstrated the prospect of irreparable injury absent a stay; has shown that maintaining the status quo ante pending appeal will not risk substantial injury to plaintiffs; and that the public interest favors a stay.
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