E.T. v. Morath
| Decision Date | 10 November 2021 |
| Docket Number | CAUSE NO. 1:21-CV-717-LY |
| Citation | 571 F.Supp.3d 639 |
| Parties | E.T., by and Through Her Parents and Next Friends; D.D., by and Through Her Parents and Next Friends; J.R., by and Through Her Parents and Next Friends; H.M, by and Through Her Parents and Next Friends; E.S., by and Through Her Parents and Next Friends; M.P, by and Through Her Parents and Next Friends; S.P., by and Through Her Parents and Next Friends; and A.M., by and Through Her Parents and Next Friends, Plaintiffs, v. Mike MORATH, in His Official Capacity as the Commissioner of the Texas Education Agency ; the Texas Education Agency ; and Attorney General Kenneth Paxton, in His Official Capacity as Attorney General of Texas, Defendants. |
| Court | U.S. District Court — Western District of Texas |
Thomas M. Melsheimer, John Michael Gaddis, Scott C. Thomas, William Greg Fox, Jr., Alex Wolens, Winston & Strawn LLP, L. Kym Davis Rogers, Disability Rights Texas, Dallas, TX, Brandon W. Duke, Winston & Strawn LLP, Dustin Wade Rynders, Pro Hac Vice, Disability Rights Texas, Houston, TX, Brian Dean East, Peter Hofer, Disability Rights Texas, Austin, TX, Linda T. Coberly, Pro Hac Vice, Winston and Strawn, Chicago, IL, Robert Winterode, Pro Hac Vice, Disability Rights Texas, El Paso, TX, for Plaintiffs E.T., J.R., S.P., M.P., E.S., H.M., A.M.
Christopher D. Hilton, Todd A. Dickerson, Ryan G. Kercher, Taylor K. Gifford, Office of the Attorney General of Texas, Austin, TX, for Defendants Mike Morath, Texas Education Agency, Kenneth Paxton.
On October 6, 2021, the court called the above-styled declaratory-judgment and injunctive action for bench trial.1 Plaintiffs and Defendants appeared by counsel. At issue is whether Texas Governor Greg Abbott's Executive Order GA-38 ("GA-38") violates Title II of the Americans with Disabilities Act of 1990 ("ADA")2 and Section 504 of the Rehabilitation Act of 1973 ("Section 504"),3 and whether GA-38 is preempted by the ADA, Section 504, and the American Rescue Plan Act of 2021 ("ARP Act")4 . Also before the court is Defendants’ Motion to Dismiss filed September 13, 2021 (Doc. #34). Having carefully considered the evidence presented at trial, the pleadings, the motion to dismiss, and the applicable law, the court concludes that declaratory and injunctive relief is warranted. In so deciding, the court grants in part the motion to dismiss as to Defendants Mike Morath and the Texas Education Agency ("TEA") only and makes the following findings of fact and conclusions of law, ultimately concluding that GA-38 violates Plaintiffs’ rights under the ADA and Section 504 and is preempted by the ADA, Section 504, and the ARP Act.5
As of November 4, 2021, 6,503,629 total child COVID-19 cases have been reported in the United States, representing more than 16.7% of the total cases in the United States.6 The prevalence of pediatric COVID-19 cases has increased dramatically since the 2021-2022 school year began, with 23% of all child cases since the beginning of the pandemic diagnosed between August 13 and September 23, 2021.7 This surge in child cases appears to be due to two principal factors: the resumption of in-person schooling and the emergence of the Delta variant of COVID-19, which is more than twice as contagious as previous variants.8 The Delta variant infects children at a higher rate than previous variants and has caused higher infection rates among students than did the Alpha variant during the previous school year. The Delta variant also causes more serious illness and increased fatality rates than prior COVID variants.
The spread of COVID-19 poses an even greater risk for children with special health needs. Children with certain underlying conditions who contract COVID-19 are more likely to experience severe acute biological effects and to require admission to a hospital and the hospital's intensive-care unit.9 This includes children with conditions including, Down syndrome, organ transplants, lung conditions, heart conditions, and weakened immune systems.10
The majority of Texas public schools began in-person classes for the 2021-2022 school year between August 9 and 23, 2021. Since that time and up to October 31, 2021, 211,788 students have tested positive for COVID-19.11 Since the start of the 2021-22 school year, at least 45 districts in Texas have temporarily shut down due to COVID-19 outbreaks among students and staff.12 The United States Centers for Disease Control and Prevention's ("CDC") Guidance for COVID-19 Prevention in K-12 Schools, updated on November 5, 2021, recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.13
Plaintiffs are seven students enrolled in the Texas public-school system who have disabilities as defined under the ADA and Section 504. Plaintiffs’ disabilities include Down syndrome, a heart defect, asthma, immune deficiency, underlying reactive airway disease, spina bifida, chronic respiratory failure, and cerebral palsy. Plaintiffs’ medical conditions place them at increased risk of contracting COVID-19 and experiencing severe symptoms from the virus. In addition, six of the seven Plaintiffs were under the age of 12 at the time of trial and were not eligible to receive any of the currently authorized COVID-19 vaccines.14
During the 2020-21 school year, Texas independent school districts ("ISDs") were granted the discretion to choose whether to implement mask mandates for in-person instruction. However, with the issuance of GA-38 on July 29, 2021,15 governmental entities, including public-school districts, are prohibited from imposing mask requirements and any local-government entity or official that imposes a mask mandate is subject to a fine of up to $1000.16 On August 5, 2021, TEA, the state agency that oversees primary and secondary public education in Texas, issued an updated "Public Health Guidance," establishing requirements for school systems during the pandemic to reflect that "[p]er GA-38, school systems cannot require students or staff to wear a mask." TEA's Guidance has updated three times since August 5, 2021, most recently on September 17, 2021. All updates including the September 17 update reiterate GA-38's mandate that public schools are not permitted to require students, staff, or visitors to wear masks in their facilities.
Specifically, GA-38 provides, inter alia , that "[n]o governmental entity, including a ... school district ..., and no governmental official may require any person to wear a face covering or to mandate another person wear a face covering ...." Texas Governor Greg Abbott's Executive Order GA-38, ¶ 4 (July 29, 2021).
School districts in Texas have not reacted uniformly to GA-38. A number of school districts that had previously imposed mask requirements reversed course and made masking in school optional. Others have implemented masking measures in schools despite the ban. The latter school districts have been identified as potential or actual enforcement targets by Texas Attorney General Defendant Ken Paxton for their failure to comply with GA-38. In recent weeks, Paxton has sent letters threatening school districts that have or have intended to implement mask requirements with civil suits in which he will seek to enjoin the school districts’ alleged violations of GA-38's mask provision. For example, on August 17, 2021, Paxton sent a letter to the Superintendent of Round Rock ISD stating that the district had "recently enacted a local policy mandating that students and faculty wear face masks at schools in your district" and stating that, unless the district rescinded its policy, it would "face legal action taken by [his] office to enforce the Governor's order and protect the rule of law." On September 10, 2021, Paxton filed suit against six school districts: Richardson ISD, Round Rock ISD, Galveston ISD, Elgin ISD, Spring ISD, and Sherman ISD. Plaintiff E.T. attends Round Rock ISD, and Plaintiff S.P. attends Richardson ISD. On September 14, 2021, Paxton filed suit against nine additional school districts: La Vega ISD, McGregor ISD, Midway ISD, Waco ISD, Diboll ISD, Lufkin ISD, Longview ISD, Paris ISD, and Honey Grove ISD.
Paxton has also tweeted about his willingness to sue any public entity that does not comply with GA-38. On August 26, 2021, Paxton tweeted, On September 14, 2021, right after Paxton increased his lawsuits against public school districts to 15, he tweeted,
In addition, the Office of the Attorney General of Texas's website maintains a "List of Government Entities Unlawfully Imposing Mask Mandates"17 that states The list has been updated several times, the most recent update being on October 5, 2021. As of October 5, there are 102 school districts, schools, and counties listed as noncompliant, including but not limited to the following school districts in which some of the Plaintiffs are enrolled: Edgewood ISD, San Antonio ISD, Round Rock ISD, Leander ISD, and Richardson ISD. There are 40 school districts and counties listed as "previously not in compliance" but "now in compliance," including but not limited to the following school...
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