Disability Rights Texas filed a federal lawsuit Tuesday against Abbott and Texas Education Agency Commissioner Mike Morath over Abbott’s executive order preventing school districts from enacting their own mask-wearing requirements.
Abbott’s order, the group alleges in the suit, violates the Americans with Disabilities Act and federal protections for students with disabilities by preventing “students with disabilities from safely returning to school for in-person instruction without serious risk to their health and safety.”
Parents of “medically vulnerable students” will have to “decide whether to keep their children at home or risk placing them in an environment that presents a serious risk to their health and safety” if schools can’t implement mask-wearing, the lawsuit says.
“As a result, Governor Abbott and TEA have erected an unlawful barrier, which will impact many students with disabilities and prevent local school districts and communities from providing a safe learning environment for their most vulnerable students,” the lawsuit reads.
The disability rights group — which sued Abbott and Morath in the Western District of Texas on behalf of 14 schoolchildren who have disabilities or chronic diseases — wants a federal judge to block, at least temporarily, Abbott’s prohibition on mask mandates so school officials can require students, teachers, staff and visitors to don masks.
Disability Rights Texas’ statement about the lawsuit is here, and a copy of the complaint is here. I’ll leave it to the lawyers to evaluate the merits of this complaint, but it’s a new front in the battle and offers perhaps a new wedge against Abbott’s harmful order.
In a recent episode of the Yallitics podcast, law professor Steve Vladeck was asked about the potential for federal litigation over the mask mandate ban, since so far everything had been filed in state courts. His answer was simply that such a filing would require the assertion of a federal right being violated, and that’s what we have here. It’s also potentially an opening for the Biden administration to take more direct action, if they are so inclined. I’ll be very interested to see how this plays out. The Chron has more.
(On a separate note, DRT also recently filed an amicus brief with the state Supreme Court in support of the plaintiffs fighting the mask mandate ban there.)
Shit’s about to get real.
C.L. Exactly. The restaurants and gyms, and other places required by NYC to check your COVI-pass vaccination passport are going to get hit with a civil rights lawsuit because they are racist. The largest group of not vaccinated is the African American community. The lid is off. Of course Biden can also distract from his long and very growing list of failures by jumping into this battle.
Crazy. From Abbott’s lawsuit(s) status to racist businesses in NYC to Biden’s failures.
Try to focus, Dr. Hochman.
LAW PROF WEIGHS IN ON ABBOTT’S (LACK OF) DISASTER-RESPONSE THWARTING AUTHORITY
Governor Abbott simply did not and does not have the constitutional or statutory power to issue Executive Order 38 (GA38).
Governor Abbott’s order of GA-38 actually causes all of the dangers that he is charged with eliminating. It is wholly inconsistent with the Legislative intent for the Governor to consciously and knowingly not meet or prevent the dangers, but to enhance them. There is simply no language in the statute that empowers the Governor to give citizens permission to prolong the disaster. It is thereby void.
…
If the Governor chooses to allow this to happen, that is his discretion to do so.
Does he have the power to legally forbid other governmental entities from preventing such a tragedy? No he does not.
Thus, GA-38 might be good for politics or for re-election, but if local governments or entities simply want to protect the public welfare, they may do more than the Governor and he has absolutely no legal authority to stop them.
I respectfully request this Court to uphold the clear and unambiguous
language of Chapter [418] that establishes Governor Abbott wholly lacks any
statutory authority to legally forbid local governmental entities from demanding
more protection from the dangers of the disaster than those required by the
Governor. Therefore GA-38 is invalid as to forbidding all local governmental
entities from requiring the wearing of masks by its citizens.
Amicus Letter by Ron Beal Professor Emeritus & Attorney at Law
Waco, Texas
Entire piece here: https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=88b7361d-bce9-400f-b799-9fed1f6f40c6&coa=cossup&DT=BRIEFS&MediaID=85d4596a-9ac7-4e10-8997-3ef4a84d012b
COMMENT: This friend-of-the-court only a few pages long and quite comprehensible for a general audience, i.e. not hyper-legalistic, but still soundly argued. For litigants, note the exposition of the state-local floor-ceiling issue, which was also litigated last year in State v. Hollins and State v. El Paso County.
Prof. Beal submitted it in Tex. 21-0687, which is bound for dismissal because it involves the San Antonio TRO that has since expired. The AG is already pursuing an interlocutory appeal from the temporary injunction the took the place of the TRO in the Fourth Court of Appeals. The Plaintiffs-Appellees have filed a TRAP 29 motion to preserve the TI while the appeal is pending because the AG claims that the filing of the notice of appeal triggered an automatic stay (supersedeas). They claim that the trial court denied their jurisdictional plea by implication (by granting the temporary injunction) even though the judge didn’t expressly rule on the State’s plea to the jurisdiction for lack of sufficient notice to the plaintiffs.
Off topic, but the UK Parliament just voted to censure Joe Biden….the first time in history they’ve done that to a US President. It’s a historic first!
https://www.telegraph.co.uk/politics/2021/08/18/parliament-holds-joe-biden-contempt-afghanistan/
“Parliament holds Joe Biden in contempt over Afghanistan
MPs and peers unite to condemn ‘dishonour’ of US president’s withdrawal and his criticism of Afghan troops left behind to face Taliban
By Ben Riley-Smith, Political Editor 18 August 2021 • 9:30pm
Joe Biden’s handling of the Afghanistan withdrawal was condemned as “catastrophic” and “shameful” on Wednesday as the Houses of Parliament delivered an unprecedented rebuke to a US president….”
America is back! The adults are in charge again.
Closer to home, a Fort Bend County state court this afternoon granted a temporary injunction againt COVID Emergency Rule Governor Greg Abbott, according to the County Judge and multiple breaking news reports.
Trial Case No. 21-DCV-286148; County of Fort Bend, Texas vs Greg Abbott, in his official capacity as Governor of Texas.
This renders moot the pending mandamus case in the First Court of Appeal. The AG will no doubt file an immediate interlocutory appeal, which should go to the same appellate court per local rule for successive appellate activity between the same parties on the same matter. (Fort Bend, like Harris County, is within the coextensive jurisdictions of the First and the Fourteenth COA).
VOICE OF REASON
Meanwhile, here is the text of Prof. Beal’s amicus submission in Tex. 21-0686, which remains pending:
Re: In re Greg Abbott in His Official Capacity as Governor of the State of Texas
Cause No: 21-0686
https://search.txcourts.gov/Case.aspx?cn=21-0686&coa=cossup
Amicus Letter Brief
Dear Honorable Justices of the Texas Supreme Court:
I am absolutely not receiving any compensation from anyone in the preparation of and filing of this amicus brief. Since time is of the essence, I believe it is necessary to set forth the lawful resolution of this case in as few words as possible.
[Note: Funding source must be disclosed in any, per TRAP 11]
GA-38 forbids Texas citizens and Texas governmental agencies including
schools from currently or in the future mandating the use of masks which are
without scientific doubt the second most effective tool in preventing bodily injury
and death caused by the covid variant.
Governor Abbott’s sole authority is to issue executive orders to reduce the
vulnerability of people to personal injury and death and produce settings
conducive to the rapid and orderly restoration of persons affected, Tex. Gov’t
Code, Chapter 418.002(1) & (3).
Therefore, since GA-38 solely enhances and increases such harm with massive exposure to the transmission of the covid variant in such settings, it is wholly inconsistent with and outside the scope of that statutory mandate.
It is simply without doubt void, reprehensible and inexcusable. End of case.
Let us go home and get our children ready for school and ourselves for work knowing we will survive this pandemic and continue to be safe and productive as possible until it is over due to the acts of our local government officials. If the Governor wants to join in a positive way as the Legislature so intended, come on down!
Sincerely,
/s/Ron Beal
Ron Beal
Professor Emeritus & Attorney at Law
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