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On 29 July 2021, Texas Governor Greg Abbott promulgated Executive Order GA-38 which, among other things, prohibited school districts from imposing mask mandates.

The parents of a number of severely disabled children, highly susceptible to contract COVID-19, brought a disability discrimination lawsuit against the State, alleging that the order complained of was, inter alia, in breach of the American with Disabilities Act (ADA). After denying plaintiffs' request for a temporary restraining order and preliminary injunction, the district court held a bench trial and entered a permanent injunction and final judgment against the Attorney General representing the State, permanently enjoining the latter from enforcing Order GA-38.

On 25 July 2022, the 5th Circuit Court of Appeals overturned – by a majority – the lower court’s decision, finding that the district court lacked subject-matter jurisdiction because plaintiffs had not shown that their increased risk of contracting COVID-19 in school without mask mandates was an injury the Court could address. Indeed, in order to invoke the Court’s jurisdiction in such cases, plaintiffs must prove: (i) an injury in fact; (ii) that is fairly traceable to the defendant's conduct; and (iii) that is likely redressable by a favorable decision. According to the majority opinion, in the case at hand, the group of medically vulnerable children did not establish an injury by showing an "invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent". In particular, the evidence produced by plaintiffs did not show that COVID-19 infections were "certainly impending" in schools without mask mandates, but not in schools mandating masks. “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 Court said. Accordingly, the appellate court vacated the district court's injunction and remanded with instructions to dismiss the suit without prejudice.

Full text of the decision available at ca5.uscourts.gov en