United States Court of Appeals

for the Fifth Circuit

No. 21-51083

E.T., by and through her parents and next friends; J.R., by and through her 

parents and next friends; S.P., by and through her parents and next friends; 

M.P., by and through her parents and next friends; E.S., by and through her 

parents and next friends; H.M., by and through her parents and next friends; 

A.M., by and through her parents and next friends, 

Plaintiffs—Appellees,

versus

Kenneth Paxton, in his official capacity as Attorney General of Texas, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:21-CV-717

Before Davis, Willett, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:*

In accordance with powers vested in him by the Texas Legislature, 

Governor Greg Abbott promulgated Executive Order GA-38 to unify the 

State’s response to COVID-19. Among other things, GA-38 prohibited

* Judge Willett concurs in the judgment and in parts I and II.C of the opinion.

United States Court of Appeals

Fifth Circuit

FILED

July 25, 2022

Lyle W. Cayce

Clerk

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school districts from imposing mask mandates. Some students sued. Then 

the district court permanently enjoined the Texas Attorney General from 

enforcing GA-38. We hold, however, that the district court lacked subjectmatter jurisdiction. Accordingly, we vacate the district court’s injunction and 

remand with instructions to dismiss the suit without prejudice.

I.

GA-38 provides that “[n]o governmental entity, including 

a . . . school district . . . , and no government official may require any person 

to wear a face covering or to mandate another person wear a face covering.” 

GA-38 has “the force and effect of law.” Tex. Gov’t Code § 418.012.

Plaintiffs are children with disabilities attending Texas public schools. 

On August 17, 2021, plaintiffs filed this lawsuit in federal district court 

challenging GA-38 and related Public Health Guidance from the Texas 

Education Agency (“TEA”). The original complaint included 14 plaintiffs, 

who were “students with disabilities and underlying medical conditions 

which carry an increased risk of serious complications or death in the event 

that they contract COVID-19.” It named as defendants Governor Abbott, the 

TEA, and TEA Commissioner Mike Morath.

The original complaint included three claims: (1) violation of the 

Americans with Disabilities Act (“ADA”) against Abbott and Morath in 

their official capacities, (2) violation of Section 504 of the Rehabilitation Act 

of 1973 against all defendants, and (3) federal preemption under the 

American Rescue Plan Act of 2021 (“ARP Act”) against all defendants. 

Plaintiffs requested declaratory and injunctive relief.

Plaintiffs amended their complaint twice before trial. First, on 

September 1, they amended their complaint to add the Attorney General as a 

defendant. Second, a week before trial, plaintiffs filed a second amended 

complaint with leave of court, adding a new claim and subtracting some 

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plaintiffs and a defendant. The new claim alleged the ADA and 

Rehabilitation Act preempted GA-38. Seven plaintiffs exited the suit, and the 

seven remaining plaintiffs dropped their claims against the Governor.

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. The 

court held that plaintiffs have standing to sue. It then declared that GA-38 

violates Title II of the ADA and Section 504 of the Rehabilitation Act. It 

further held that, insofar as it applies to school districts, GA-38 is preempted 

by the ADA, Section 504, and the ARP Act. The court enjoined the 

Attorney General from enforcing the Executive Order. The Attorney 

General sought a stay pending appeal, which the district court denied. But 

we granted the stay and expedited the appeal.

II.

“Article III jurisdiction is always first. Here, it’s also last.” Shrimpers 

& Fishermen of RGV v. Tex. Comm’n on Env’t Quality, 968 F.3d 419, 426 (5th 

Cir. 2020) (Oldham, J., concurring) (citations omitted). To invoke our 

jurisdiction, plaintiffs must satisfy the familiar tripartite test for Article III 

standing: (A) an injury in fact; (B) that’s fairly traceable to the defendant’s 

conduct; and (C) that’s likely redressable by a favorable decision. See Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); see also Env’t Tex. Citizen 

Lobby, Inc. v. ExxonMobil Corp., 968 F.3d 357, 367 (5th Cir. 2020) (“Because 

this case was tried, Plaintiffs needed to prove standing by a preponderance of 

the evidence.”). All three elements are missing here.

A.

Plaintiffs have not presented an injury in fact sufficient to satisfy 

Article III. To establish such an injury, plaintiffs must show they “suffered 

an invasion of a legally protected interest that is ‘concrete and particularized’

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and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. 

Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560). Plaintiffs 

haven’t carried that burden here because (1) the injury they’ve alleged is not

a cognizable injury in fact, and (2) they may not relabel their injury as 

something it’s not.

1.

Plaintiffs’ alleged injury is the increased risk they face of contracting 

COVID-19 in school without mask mandates and experiencing complications 

or severe symptoms from a COVID-19 infection. They rely on their doctors’ 

statements that “[i]n order to decrease [plaintiffs’] risk,” everyone around 

them “should observe strict COVID-19 safety protocols and wear a mask 

indoors.” Plaintiffs further contend that, without mask mandates, it is 

“simply too dangerous” for them to attend in-person school.

To establish an injury in fact, plaintiffs must show an “invasion of a 

legally protected interest” that is both “concrete and particularized” and 

“actual or imminent, not conjectural or hypothetical.” Spokeo, 578 U.S. at 

339 (quotation omitted). This circuit does not “recognize the concept of 

probabilistic standing based on a non-particularized increased risk—that is, 

an increased risk that equally affects the general public.” Shrimpers, 968 F.3d 

at 424 (quotation omitted). And even where increased-risk claims are 

particularized, they generally “cannot satisfy the actual or imminent 

requirement,” which necessitates “evidence of a certainly impending harm 

or substantial risk of harm.” Ibid. (quotation omitted); see also Ctr. for 

Biological Diversity v. EPA, 937 F.3d 533, 537 n.2 (5th Cir. 2019) (“[A]ny 

difference between ‘certainly impending’ and ‘substantial risk’ is immaterial 

here.”). That’s because “[m]uch government regulation slightly increases a 

citizen’s risk of injury—or insufficiently decreases the risk compared to what 

some citizens might prefer.” Shrimpers, 968 F.3d at 424 (quoting Pub. 

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Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1295

(D.C. Cir. 2007)). And “[o]pening the courthouse to these kinds of 

increased-risk claims would drain the ‘actual or imminent’ requirement of 

meaning.” Ibid. (quoting Pub. Citizen, 489 F.3d at 1295).

Plaintiffs’increased risk of contracting COVID-19 fails to satisfy these 

requirements. There is no way to understand plaintiffs’ trial evidence as 

establishing COVID-19 infections are “certainly impending” in schools 

without mask mandates, but not in schools mandating masks. Shrimpers, 968 

F.3d at 425. At the time of trial, two of plaintiffs’ seven schools were maskoptional (in compliance with GA-38), and five mandated masks (in violation 

of GA-38). The two mask-optional schools had positivity rates of 1.9 and 3.0 

percent. The five schools with mask mandates measured at 0.3, 1.1, 2.3, 4.9, 

and 5.4 percent—higher, lower, and in between the rates from the maskoptional schools. Moreover, plaintiffs did nothing to control for their

schools’ various other efforts to reduce COVID-19 infections, and hence did 

nothing to prove the relative efficacy of mask mandates in the five lawviolating schools. Cf. Dominguez v. UAL Corp., 666 F.3d 1359, 1363 (D.C. Cir. 

2012) (concluding antitrust plaintiff’s alleged injury was “speculative at 

best” because it failed to take into account numerous variables at play);

Finkelman v. Nat’l Football League, 810 F.3d 187, 202 (3d Cir. 2016) (similar); 

Bochese v. Town of Ponce Inlet, 405 F.3d 964, 985 (11th Cir. 2005) (holding 

alleged injury did “not rise to the level of certainty required to establish an 

injury in fact” where injury depended on a “series of substantial variables, 

over which [the plaintiff] himself had utterly no control”); cf. also Simon v. E. 

Ky. Welfare Rights Org., 426 U.S. 26, 44 (1976) (“[U]nadorned speculation 

will not suffice to invoke the federal judicial power.”); United Transp. Union 

v. ICC, 891 F.2d 908, 915 (D.C. Cir. 1989) (“Any one of the factors discussed 

above might be enough to place the petitioner’s allegation in the category of 

unadorned speculation, and therefore to deny standing; taken together, 

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petitioner’s claim of injury seems but a shadow in the mist.” (quotation 

omitted)).

Plaintiffs’ risks of complications from COVID-19 likewise do not 

satisfy Article III. Here too, plaintiffs lack evidence sufficient to show this 

“allegation of future injury” is “certainly impending” as a result of GA-38. 

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014); see also Whitmore 

v. Arkansas, 495 U.S. 149, 158 (1990) (“[W]e have said many times before 

and reiterate today: Allegations of possible future injury do not satisfy the 

requirements of Art. III. A threatened injury must be certainly impending to 

constitute injury in fact.” (quotation omitted)); Shrimpers, 968 F.3d at 424 

(“[E]ven if a petitioner’s increased-risk harms are particularized, they also 

must be actual or imminent.”). 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.” Pub. Citizen, 489 F.3d at 1293–94.

To be sure, “imminence” is “a somewhat elastic concept.” Lujan, 

504 U.S. at 564 n.2; see also Ghedi v. Mayorkas, 16 F.4th 456, 465 n.36 (5th 

Cir. 2021) (describing “imminence” as “an elastic concept that turns on a 

sufficiently high degree of likelihood of future injury” (quotation omitted)). 

But the concept “cannot be stretched beyond its purpose, which is to ensure 

that the alleged injury is not too speculative for Article III purposes—that the 

injury is certainly impending.” Lujan, 504 U.S. at 564 n.2 (quotation 

omitted). And it “has been stretched beyond the breaking point where, as 

here, the plaintiff alleges only an injury at some indefinite future time.” Ibid.; 

see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 415 (2013) (rejecting 

standing based on “fears of hypothetical future harm that is not certainly 

impending”).

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Even the district court, which entered a permanent injunction against 

enforcement of the Executive Order, could not say that GA-38 creates a 

“certainly impending harm or substantial risk of harm” to plaintiffs. 

Shrimpers, 968 F.3d at 424. Instead, the district court excused plaintiffs from 

showing such proof. In the district court’s words, plaintiffs need not show 

“enforcement of GA-38 will actually cause any of them to contract COVID 

or that they would actually contract COVID in a mask-optional school 

environment.” That conclusion is remarkable, and it squarely conflicts with 

the precedents described above. 

2.

Perhaps recognizing that the increased-risk claims face 

insurmountable roadblocks, both the district court and plaintiffs attempted

to reframe the relevant injury. The district court, for example, characterized 

the injury as “the deprivation of reasonable access to in-person schooling.” On 

appeal, plaintiffs argue they are injured by “deprivation of access to in-person 

schooling on an equal basis with their non-disabled peers.” And they contend 

the “core” of their claimed equal-access injury is “denial of case-by-case 

decisionmaking.” The dissent adopts this characterization. See post, at 5 

(characterizing plaintiffs’ injury as being denied “an opportunity to 

participate in public education . . . that is equal to that enjoyed by students 

without disabilities”).

There are at least four problems with this approach. First, arguments 

in favor of jurisdiction can be forfeited. Ctr. for Biological Diversity, 937 F.3d 

at 542. At successive stages of this litigation, plaintiffs have changed their 

standing theory from “increased risk” to “reasonable access” to “equal 

access.” The forfeiture rules—which apply to arguments in favor of standing

as they do to other arguments in federal litigation, see ibid.—prohibit such 

efforts to move the goalposts.

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Second, federal courts must consider plaintiffs’ actual injury—not the 

labels plaintiffs put on that injury. As the leading treatise observes, the law of 

standing is fraught with the danger that plaintiffs will engage in “artful 

pleading” to make an end-run around the strictures of Article III. See R. 

Fallon, J. Manning, D. Meltzer & D. Shapiro, Hart and 

Wechsler’s The Federal Courts and the Federal System 

124–25 (7th ed. 2015); Clapper, 568 U.S. at 401 (expressing concerns about 

attempts to “manufacture standing” where injuries are otherwise too 

speculative to satisfy Article III); see also Cass R. Sunstein, Standing and the 

Privatization of Public Law, 88 Colum. L. Rev. 1432, 1464–65 (1988) 

(“The central problem . . . is how to characterize the relevant 

injury . . . . [Once] recharacterized, [otherwise-speculative] injuries are not 

speculative at all.”).

Third, plaintiffs misunderstand the relevant legal question. What 

matters for Article III is whether plaintiffs “suffered an invasion of a legally 

protected interest.” Spokeo, 578 U.S. at 339 (emphasis added) (quotation 

omitted). Neither the ADA nor Section 504 creates a legally protected 

interest in equality simpliciter. Rather, those statutes legally protect reasonable 

access to covered facilities and benefits. And they require covered entities to 

facilitate such access by way of reasonable accommodations. So ADA 

plaintiffs aren’t necessarily injured every time their method of access differs 

from that of their non-disabled peers—they’re injured when they are denied 

the reasonable access the statutes protect.

It’s no answer to say, as plaintiffs do, that they prefer one 

accommodation to all others. It’s well settled that defendants—not 

plaintiffs—get to choose between reasonable accommodation(s), and 

plaintiffs’ preferences between reasonable accommodation(s) are irrelevant. 

See, e.g., Cadena v. El Paso Cnty., 946 F.3d 717, 725 (5th Cir. 2020) (“[An 

ADA defendant] is not required to acquiesce to [a plaintiff’s] choice of 

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accommodations . . . . But it is required to provide her with reasonable 

accommodations that give meaningful access to the benefit.” (quotation 

omitted)). Take, for example, plaintiffs’ analogy to “a student who must rely 

on a wheelchair.” In that situation, the school might accommodate the

student in a number of ways: it might install a lift, a ramp, or something else. 

It can choose any reasonable one. The fact that a particular student prefers a 

lift to a ramp is irrelevant, so long as the school picks a reasonable 

accommodation that provides meaningful access.

So too here. All agree that plaintiffs have a legally protected interest 

in reasonable access to theirschools. And the schools, in turn, have numerous 

alternatives for mitigating the risks of COVID-19 so plaintiffs have such 

access. The schools can adopt policies regarding vaccines, plexiglass, hand

sanitizer, social distancing, and more. Plaintiffs have not even attempted to 

show that one or any combination of these accommodations is insufficient to 

mitigate the risks of COVID-19 to a level low enough that plaintiffs can attend 

school. They have simply said that they prefer one accommodation—

masks—to all others. Therefore, they cannot show that they have suffered an 

invasion of the legal interest the relevant statutes protect.1

Fourth, there’s no basis for plaintiffs’ claim that GA-38 denies them 

something the ADA guarantees—namely, the right to “individualized” or 

“case-by-case decisionmaking.” It’s true that the ADA entitles disabled 

students who inform their school of a disability to an “individualized 

assessment” of their needs. It’s also irrelevant because the record contains 

no evidence that any of these plaintiffs ever requested an accommodation 

from anyone. See Windham v. Harris Cnty., 875 F.3d 229, 236–37 (5th Cir. 

1 To the extent holding plaintiffs to their jurisdictional burden implicates the merits 

of their ADA claims, the merits are relevant only insofar as they are “intertwined” with 

plaintiffs’ theory of injury. See Brownback v. King, 141 S. Ct. 740, 749 (2021).

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2017) (“[B]ecause the ADA does not require clairvoyance, the burden falls 

on the plaintiff . . . to request an accommodation in direct and specific 

terms.” (quotation omitted)). Moreover, the record supplies no reason to 

think any student would be denied such case-by-case determinations if 

plaintiffs in fact requested them. Nor does GA-38 in any way prevent caseby-case decisionmaking. It simply eliminates one option—a mask mandate—

and retains all others. It is plainly within the State’s power to remove one 

possible accommodation from consideration, so long as other reasonable 

options remain. And it is transparently wrong to equate the State’s course of 

action with “[d]enying the children individualized assessment of their 

needs.”

Here, all agree plaintiffs have physical access to their classrooms. All 

agree all seven schools take a multi-pronged approach to COVID-19

mitigation. All agree plaintiffs, their classmates, and their teachers are 

welcome to wear masks and ask those around them to wear masks. All agree 

plaintiffs presented zero evidence that anyone—let alone “individual[s] 

working constantly with a disabled child,” post, at 1 n.1—would refuse a 

request to wear a mask or take comparable safety measures while working 

closely with a vulnerable student. And all agree at least some of the plaintiffs 

are committed to attending in-person classes, whether or not their schools 

mandate masks. Therefore, even if plaintiffs could recharacterize their injury 

as denial of reasonable access to schools, plaintiffs failed to show they have 

suffered or certainly will suffer such an injury.

B.

Even if plaintiffs could show injury in fact, they could not carry their 

burden to establish traceability. Article III requires them to show “a causal 

connection between the injury and the conduct complained of—the injury 

has to be fairly traceable to the challenged action of the defendant, and not 

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the result of the independent action of some third party not before the court.” 

Lujan, 504 U.S. at 560 (quotation omitted); see also Ctr. for Biological 

Diversity, 937 F.3d at 542. So plaintiffs must show a causal connection 

between the Attorney General’s enforcement of GA-38 (the challenged 

action) and their increased risk of contracting COVID-19 and suffering 

complications (their asserted injury).2

Where a suit challenges a government action regulating someone other

than plaintiffs themselves, it is “ordinarily substantially more difficult” to 

establish the needed causal connection. Lujan, 504 U.S. at 562 (quotation 

omitted). That’s because when the “asserted injury arises from the 

government’s allegedly unlawful regulation . . . of someone else,” causation 

will “ordinarily hinge on the response of the regulated (or regulable) third 

party . . . and perhaps on the response of others as well.” Ibid. That makes it 

plaintiffs’ burden to show—with the same “manner and degree of evidence 

required at the successive stages of the litigation”—that those regulated

third parties’ “choices have been or will be made in such a manner as to 

produce causation.” Id. at 561–62.

2 Plaintiffs wrongly contend that it’s the Attorney General’s responsibility to raise 

traceability. “As the party invoking federal jurisdiction, the plaintiffs bear the burden of 

demonstrating that they have standing.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207 

(2021) (emphasis added). That means “arguments in favor of standing, like all arguments 

in favor of jurisdiction, can be forfeited or waived.” Ctr. for Biological Diversity, 937 F.3d at 

542 (emphasis added). But the same cannot be said for arguments against jurisdiction: Our 

court, like every federal court, “has a continuing obligation to assure itself of its own 

jurisdiction, sua sponte if necessary.” Green Valley Special Utility Dist. v. City of Schertz, 969 

F.3d 460, 468 (5th Cir. 2020) (en banc) (quotation omitted); see also Steel Co. v. Citizens for 

a Better Env’t, 523 U.S. 83, 93 (1998). That means even if the Attorney General had said 

not a single word about traceability at any point in this case, we would be nonetheless 

obligated to ensure plaintiffs have established the “irreducible constitutional minimum of 

standing.” Lujan, 504 U.S. at 560–61. The dissent also misplaces the jurisdictional burden.

See post, at 10.

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This case demonstrates how heavy that burden is. Plaintiffs must 

show, by a preponderance of the evidence, that the Attorney General’s 

enforcement of GA-38 caused their injury. See Env’t Tex. Citizen Lobby, 968

F.3d at 367. But because GA-38 doesn’t regulate plaintiffs—it regulates the 

school districts—plaintiffs must make an additional showing. Plaintiffs must 

show (1) the Attorney General’s enforcement of GA-38 caused the school 

districts to drop their mask mandates, and (2) plaintiffs’ increased-risk

injuries resulted from the school districts’ elimination of mask mandates. See 

Lujan, 504 U.S. at 562; see also Babbitt v. Farm Workers, 442 U.S. 289, 298 

(1979) (“A plaintiff who challenges a statute must demonstrate a realistic 

danger of sustaining a direct injury as a result of the statute’s operation or 

enforcement.” (emphasis added)).

Plaintiffs cannot come close to that showing. On the first point, it’s 

undisputed the Attorney General’s enforcement activity did not cause five of 

the seven plaintiffs’ schools to eliminate their masking requirements. As the 

parties stipulated at the time of trial, those schools maintained their mask 

mandates despite the Governor’s issuance of GA-38, despite receiving 

“threatening letter[s]” from the Attorney General, and despite the Attorney 

General actually suing some school districts. So at least with respect to five 

of the plaintiffs’ schools, plaintiffs cannot establish the first link in the causal 

chain: Their school districts refused to eliminate mask mandates, regardless 

of what the Attorney General said or did.

But even if the Attorney General’s enforcement of GA-38 caused 

plaintiffs’ schools not to mandate masks, plaintiffs still could not trace their 

increased-risk injuries back to the Executive Order. As discussed in Part II.A, 

supra, plaintiffs failed to identify any increased risk of contracting COVID-19

resulting from the prohibition on mask mandates, and any increased risk of 

suffering complications from a hypothetical COVID-19 infection is even 

more attenuated. But even assuming plaintiffs could show those increased 

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risks, they could be attributed to any number of variables that have nothing 

to do with mask mandates. Those include innumerable differences in the way 

plaintiffs’ schools—each an independent actor—have chosen to address 

COVID-19. See Clapper, 568 U.S. at 414 & n.5 (holding the uncontrollable 

actions of independent third-parties make it difficult or impossible to trace 

plaintiffs’ injuries to defendants’ conduct); see also id. at 417 n.7 (“To the 

extent that [plaintiffs’ predictions about how third parties will react] are 

based on anything other than conjecture . . . they do not establish injury that 

is fairly traceable [to the government’s action].”). Plaintiffs have done 

nothing to control those independent variables.

All of this presumably explains why the entirety of the district court’s 

factual finding on this point is this: “the use of masks may decrease the risk 

of COVID infection in group settings.”3 That finding fails to support 

plaintiffs’ contention that mask mandates are the only way they can 

adequately reduce the risks of COVID-19. It says nothing about allowing but 

not requiring masks. It says nothing about masks’ relative efficacy vis-à-vis 

other mitigation measures. And it says nothing about school environments 

generally or plaintiffs’ schools specifically. It therefore warrants no weight.

See Int’l Energy Ventures Mgmt., LLC v. United Energy Grp., Ltd., 999 F.3d 

257, 268 (5th Cir. 2021), cert. denied, 142 S. Ct. 2752 (2022) (mem.).

3 The dissent takes pains to “emphasize that this case was tried to the bench, and 

the district court . . . entered detailed findings of fact.” Post, at 4. But neither the dissent 

nor the plaintiffs identified factual findings other than this one, let alone multiple 

“detailed” factual findings. See Oral Arg. at 24:40–26:35 (responding to request to identify 

relevant factual findings in the district court opinion, plaintiffs’ counsel pointed to the

court’s finding that “the use of masks may decrease the risk of COVID infection in group 

settings”).

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C.

Even if plaintiffs could meet their burden on injury in fact and 

traceability, they still would not be able to show their injuries are likely 

redressable by a favorable decision.

As with traceability, when an asserted injury arises from the 

government’s regulation of someone other than the plaintiffs, “redressability 

[will] ordinarily hinge on the response of the regulated (or regulable) third 

party.” Lujan, 504 U.S. at 562. And that makes a plaintiff’s choice of 

defendant especially important. Because if they don’t sue the regulated third 

party, they leave redressability to turn on “the unfettered choices made by 

independent actors not before the courts and whose exercise of broad and 

legitimate discretion the courts cannot presume either to control or predict.” 

Ibid.(quotation omitted).And whether or not they bring the regulated parties

before the court, plaintiffs’ redressability burden remains the same: They

must at least show that the regulated parties “will likely react in predictable 

ways.” California v. Texas, 141 S. Ct. 2104, 2117 (2021) (quotation omitted). 

“Plaintiffs cannot rely on speculation” about the choices the regulated 

parties might make. Clapper, 568 U.S. at 414 n.5 (quoting Lujan, 504 U.S. at 

562).

Here, plaintiffs rely wholly on speculation about the unfettered 

choices made by actors not before our court. Plaintiffs chose not to sue their 

school districts. The school districts have the unfettered choice—with or 

without GA-38, and with or without any involvement by the Attorney 

General—to drop their mask mandates at any time. And indeed they have. 

None of plaintiffs’ schools require masks today. And we could not enjoin 

those schools to impose mask mandates if we wanted to because plaintiffs did 

not sue them. That alone proves that plaintiffs’ claims are not redressable. 

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Plaintiffs chose instead to sue the Attorney General. And what does 

the Attorney General have to do with plaintiffs’ increased risks from 

COVID-19? Nothing. He does not set masking policies. Nor can he order the 

school districts to adopt masking policies (as evidenced by several schools’

refusals to abide by GA-38 or the Attorney General’s threatened 

enforcement of it). And even if we affirmed the district court’s permanent 

injunction against the Attorney General, the school districts could drop (and 

as noted above, have dropped) their mask mandates anyway. That would 

expose plaintiffs to the exact same risks they otherwise impute to GA-38, and 

no amount of equitable relief against the Attorney General will redress 

anything. 

Plaintiffs effectively concede this point by arguing not that an 

injunction against the Attorney General would redress their injuries, but 

rather that an injunction would “clear[] the way” to allow third parties

(namely, their schools) to redress their injuries.4 But that’s not how 

redressability works. For example, in Okpalobi v. Foster, 244 F.3d 405 (5th 

Cir. 2001) (en banc), abortionists sought a declaration that a provision of 

Louisiana law was unconstitutional because it authorized private suits in 

violation of the Fourteenth Amendment. We held that plaintiffs’ purported 

injuries could not be redressed by an order against defendants—the 

Governor and the Attorney General—who had no power over the third

parties who might bring suits. See id. at 426–27. It was irrelevant there, as 

here, that an order in plaintiffs’ favor might clear the way for them to 

vindicate their rights against non-parties. See id. at 453 (Parker, J., 

dissenting).

4 At trial, plaintiffs argued that “but for GA-38, these seven schools would have a 

universal mask mandate.” Plaintiffs have not made that argument on appeal.

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It is no answer to say, as plaintiffs do, that a permanent injunction 

against the Attorney General partially redresses their injuries and hence 

satisfies the Article III minimum. It’s true that a partial remedy is 

constitutionally sufficient. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 

(2021) (recognizing nominal damages as sufficient to satisfy redressability 

requirement despite not providing “full redress”). It’s also irrelevant here. 

Even with the district court’s robust injunction against the Attorney General, 

all seven of the plaintiffs’ schools could—and in fact did—eliminate their 

mask mandates. Thus the injunction is not a partial remedy of their alleged 

injuries; it’s no remedy at all.

* * *

Finally, a word about the scope of plaintiffs’ theory of injury and the 

limitlessness of the dissent. According to plaintiffs and our esteemed 

colleague in dissent, Article III of the Constitution gives plaintiffs standing to 

demand court-created mask-mandate bubbles. This case involves schools. 

But plaintiffs’ theory, shared by the dissent, would reach every property 

covered by the ADA and Section 504. Restaurants, movie theaters, libraries, 

hotels, grocery stores, you name it. It would require federal courts to enforce 

mobile mask mandates that go where plaintiffs go and require everyone 

around them to wear masks.

That theory of standing is equal parts sweeping and unprecedented. 

Today we reject it. The district court’s injunction is VACATED, and the 

case is REMANDED with instructions to DISMISS the case for lack of 

jurisdiction. 

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W. Eugene Davis, Circuit Judge, dissenting:

The parents of seven severely disabled children, highly susceptible to 

contracting COVID-19, brought this straightforward disability 

discrimination lawsuit against defendant-appellant, Texas Attorney General 

Kenneth Paxton (“Paxton”). They sought to enjoin Paxton’s aggressive 

enforcement of Executive Order GA-38 which on its face prohibited the 

school districts from imposing even a limited mask mandate as an 

accommodation under Section 504 of the Rehabilitation Act (“RA” or 

“Section 504”) and Title II of the Americans with Disabilities Act (“ADA” 

or “Title II”) to protect these children. The injunction issued by the district 

court does not require the school districts to impose a mask mandate; it 

simply gives them the power to do so if they find plaintiffs (or any of them) 

are unable to attend in-school classes without even a limited mask mandate.1

Based on GA-38 and Paxton’s enforcement of it, plaintiffs contend that they 

are effectively excluded from in-school classes because of their disabilities 

and the dire consequences they face if they contract COVID-19. More 

specifically, based on unchallenged evidence, they established that without 

some type of mask mandate, they cannot attend classes during the pandemic, 

and they are unfairly deprived of the valuable benefit of attending school, in 

violation of Section 504 and the ADA. Because the district court found 

uncontradicted evidence that the defendant’s enforcement of GA-38 was the 

only impediment to a school district’s granting a modification required by 

Section 504 and Title II to allow plaintiffs to attend school safely, the 

injunction was appropriate. 

1 To be clear, the sweeping order prevents the school districts from granting a 

modification, for example, to require an individual working constantly with a disabled child 

to wear a mask. Similarly, a mask mandate limited to staff members working in one room 

or wing of the school with disabled children would violate GA-38.

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The majority found plaintiffs had no standing based in part on their 

erroneous assumption that plaintiffs had brought a simple “fear of COVID19” case rather than the disability discrimination case that they pled and 

tried. In my view, plaintiffs proved each element of standing, and I strongly 

disagree with the majority’s contrary conclusion. Further, I conclude that 

the district court correctly issued the injunction against the defendant’s 

enforcement of GA-38. 

I.

Plaintiffs-appellees, E.T., J.R., S.P., M.P., E.S., H.M., and A.M., are 

children with disabilities who attend public schools in Texas. The children’s 

disabilities include Down syndrome, asthma, hypogammaglobulinemia, CD 

19 deficiency, growth hormone deficiency, attention deficit hyperactivity 

disorder, bronchiectasis, spina bifida, epilepsy, heart defects, and cerebral 

palsy. Because of their disabilities and based on the testimony of their 

personal physicians, the district court found that because of their heightened 

susceptibility of contracting COVID-19 and, if contracted, a heightened risk 

of severe illness or death from it, the children could not safely attend school 

where they would be in close proximity to unmasked students or staff 

members.

On July 29, 2021, Texas Governor Greg Abbot issued GA-38, which 

bars any state entity, including school districts, from requiring that any 

individual wear a mask. After Governor Abbott issued GA-38, Paxton 

undertook a campaign against Texas’s independent school districts 

(“ISDs”) threatening to enforce the Order. His office sent at least 98 letters 

to different ISDs, filed 15 separate lawsuits, and made public statements on 

Twitter expressing his willingness to continue litigating against noncompliant ISDs. Further, under Paxton’s instructions, the Texas Education 

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Authority (“TEA”), maintained a public list of non-compliant ISDs on its 

website.

Plaintiffs filed a complaint in district court on August 17, 2021. They 

alleged that GA-38 prevents school districts from imposing mask mandates 

as a reasonable modification for plaintiffs and other students with disabilities 

who are at greater risk of contracting COVID-19 and suffering severe illness 

or death as a result of the disease. They asserted disability discrimination

claims under Title II of the ADA and Section 504 of the RA. Plaintiffs 

contend that Paxton directly discriminated against them on the basis of their 

disabilities, and/or indirectly caused their ISDs to discriminate against them 

on the basis of their disabilities. Plaintiffs sought declaratory and injunctive 

relief to bar Paxton’s enforcement of GA-38. 

After a bench trial, the district court concluded, as relevant here, that 

GA-38 is preempted “to the extent that it interferes with local school 

districts’ ability to satisfy their obligations under the ADA and Section 504 

and their implementing regulations.” The court recognized that the ADA 

and Section 504 impose “an affirmative obligation [on public entities] to 

make reasonable modifications in their policies, practices, or procedures 

when necessary to avoid discrimination on the basis of disability, unless they 

can show that so doing would fundamentally alter the nature of the service, 

program, or activity.”2 The court found that GA-38 prohibits the use of mask 

mandates, including targeted and limited ones, even when a school district 

determines that “requiring masks is a reasonable modification necessary to 

enable a student with disabilities to have equal access to a safe, integrated, inperson learning environment.”

2 See 28 C.F.R. 35.130(b)(7)(i).

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Accordingly, the district court concluded that “to the extent that 

school districts cannot comply with GA-38’s ban on mask requirements and 

at the same time meet their obligations under the ADA and Section 504, the 

ADA and Section 504 supersede any conflicting provisions of GA-38.” To 

that end, the court issued a final judgment declaring, in relevant part, that 

GA-38’s ban on mask mandates as applied to school districts is preempted by 

Title II and Section 504, and enjoining Paxton and his office from enforcing 

GA-38 as applied to school districts. 

II.

At the outset, I emphasize that this case was tried to the bench, and 

the district court, based on essentially uncontradicted evidence, entered 

detailed findings of fact. The plaintiffs produced evidence from their 

personal physicians attesting to plaintiffs’ severe disabilities and giving their 

strong opinions that, because of their disabilities, they should not attend 

classes where students and staff they were near were not wearing masks. 

They testified that when the action was filed and tried, the plaintiffs were not 

eligible for vaccinations against COVID-19 and that in any event no option 

except requiring staff and students in contact with them to wear masks would 

give plaintiffs adequate protection from COVID-19 given the dire 

consequences plaintiffs could suffer. Plaintiffs also produced evidence that 

the schools they attended had mask mandates in place until GA-38 was 

issued, and the defendant began aggressively threatening the ISDs with 

lawsuits and fines if they required students and staff to wear masks. 

The majority holds that plaintiffs failed to establish standing. Judge 

Oldham, the writing judge, concluded that plaintiffs established none of the 

elements of standing: injury, traceability, and redressability. Judge Willett 

agreed their injury is not redressable; in effect, finding that plaintiffs should 

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have sued the ISDs, not Paxton. In my view, plaintiffs alleged and proved 

each element of standing.

A.

As an initial matter, the writing judge mischaracterized plaintiffs’ 

claimed injury as an “increased risk of contracting COVID-19.”3 This 

characterization of plaintiffs’ claimed injury ignores the claim alleged and 

tried: that Paxton’s conduct caused disability discrimination. Plaintiffs’ 

theory has always been that Paxton’s enforcement of GA-38 qualifies as 

disability discrimination that is prohibited by the ADA and RA. 

Plaintiffs proved that they have been, or imminently will be, injured 

by GA-38’s ban of mask requirements, because that ban denies them an 

opportunity to participate in public education—in which they have a legally 

protected interest4—that is equal to that enjoyed by students without 

disabilities. While all students bear some health risks by attending school in 

person during the ongoing pandemic, the district court found, and it is 

undisputed, that these plaintiffs face a much higher risk to their health 

because of their disabilities. Plaintiffs presented evidence that they each 

require mask mandates to remain safe while they are indoors, and defendant 

neither challenged that evidence nor offered credible evidence of another 

effective option that would protect them.5 Despite this, defendant is 

aggressively enforcing GA-38, which forbids school districts from requiring 

masks as a reasonable modification—no matter the circumstances—and 

3 To support his conclusion that this is a “fear of COVID-19” case, the writing 

judge relies on Shrimpers & Fishermen of RGV v. Texas Comm’n on Env’t Quality, 968 F.3d 

419, 424 (5th Cir. 2020) (per curiam).

4 See Goss v. Lopez, 419 U.S. 565, 574 (1975).

5 The only evidence the defendant offered was a mass of raw data showing COVID19 positivity rates in Texas public schools.

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instead relegates plaintiffs to taking their classes remotely, rather than 

accepting a greater risk to their health and safety by going to school.

Two plaintiffs have already suffered this injury: both M.P. and E.S. 

are enrolled in schools that rescinded their masking requirements in response 

to GA-38, although at time of filing their ISDs had not rescinded their mask 

mandates. The remaining five plaintiffs’ injuries were imminent. Their 

injuries were “certainly impending”— that is, that there was a “substantial 

risk that the harm [would] occur.”6 And although several of plaintiffs’ school 

districts had mask mandates in place at the time of trial, they were vulnerable 

to the sting of civil sanctions defendant threatened them with.7 Plaintiffs have 

sufficiently demonstrated a substantial risk of injury. 

All these vulnerable students are suffering (or are at substantial risk of 

suffering) an injury sufficient to confer standing: if they choose in-person 

school, they are compelled to accept a far higher risk to their health than is 

required of students without disabilities.8 These students need not prove that 

access to school is impossible; it is enough that GA-38 removes the tool that 

6 Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citation and internal 

quotation marks omitted).

7 See Brackeen v. Haaland, 994 F.3d 249, 371 n.17 (5th Cir. 2021) (en banc), petition 

for cert. pending, Nos. 21-380, 21-376, 21-378 (filed Sept. 8, 2021).

8 This injury is obviously concrete. The Supreme Court has instructed that, to 

determine whether an injury is concrete, courts must ask whether the asserted injury has 

“a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in 

American courts.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021) (citing 

Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)). And, this injury could not be more 

personal—it prevents each plaintiff from attending school with their classmates, a

recognized harm.

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the record shows would afford them an opportunity to participate in inperson schooling equal to that enjoyed by students without disabilities.9

In short, plaintiffs have satisfied Article III’s injury requirement. The 

discriminatory denial of equal access to education is a concrete harm, is 

particularized to each plaintiff, and has actually materialized. 

B.

Paxton did not challenge traceability in his brief to this Court, for good 

reason; plaintiffs clearly established traceability. Under this element, 

plaintiffs must show “a causal connection between the injury and the 

conduct complained of—the injury has to be fairly traceable to the challenged 

action of the defendant, and not the result of the independent action of some 

third party not before the court.”10 But Article III requires only “de facto 

causation.”11

At trial, plaintiffs introduced uncontroverted evidence that 

establishes traceability for at least one plaintiff, which is all that is required 

for standing.12 Specifically, M.P. attends school in Fort Bend ISD 

(“FBISD”), which dropped its mask mandate by the time trial occurred. 

Plaintiffs submitted an affidavit by Dennetta Williams, an elected member of 

FBISD’s Board of Trustees, who attested that “[t]he FBISD mask mandate 

would remain in place but for [Paxton’s] enforcement of GA-38.” This 

9 See 28 C.F.R. § 35.130(b)(1)(i)-(iii).

10 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (emphasis added and cleaned 

up).

11 Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019).

12 See McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 471 (5th Cir. 2014) 

(“It is well settled that once we determine that at least one plaintiff has standing, we need 

not consider whether the remaining plaintiffs have standing to maintain the suit.”).

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evidence is sufficient to establish that Paxton’s enforcement efforts were the 

de facto cause of M.P.’s injury. 

Moreover, even though five ISDs had not yet lifted their mask 

mandates on the day of the trial, it was manifestly predictable that they 

would. Paxton, the State’s highest law enforcement authority, exerted 

extraordinary pressure on the non-compliant ISDs. As discussed, Paxton sent 

threatening letters, made threatening tweets, and filed lawsuits against 15 

different ISDs to enforce GA-38. The “predictable effect” of Paxton’s 

enforcement activity was that ISDs would drop their mask mandates.13

Indeed, as of now, none of the seven ISDs have mask mandates.

Based on Williams’ affidavit and the predictable effect of Paxton’s 

enforcement efforts on non-compliant ISDs, I would affirm the district 

court’s finding that plaintiffs’ injuries are fairly traceable to Paxton’s 

conduct. 

C.

To establish the final element of standing, redressability, plaintiffs 

must show that it is “likely, as opposed to merely speculative, that a favorable 

decision will redress” their injury.14 The redressability requirement is met 

when “a favorable decision will relieve a discrete injury” to the plaintiffs.15

They “need not show that a favorable decision will relieve [their] every

injury.”16 Plaintiffs satisfied these requirements. 

13 Dep’t of Com., 139 S. Ct. at 2566.

14 Dep’t of Texas, Veterans of Foreign Wars of U.S. v. Texas Lottery Comm’n, 760 F.3d 

427, 432 (5th Cir. 2014) (quoting S. Christian Leadership Conference v. Supreme Court of 

State of La., 252 F.3d 781, 788 (5th Cir.2001)).

15 Id. (quoting K.P. v. Leblanc, 627 F.3d 115, 123 (5th Cir. 2010)).

16 Id. (emphasis in original).

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First, plaintiffs sued Attorney General Paxton, the official who was 

actively enforcing GA-38, to get the relief they required. Also, contrary to 

what the majority says, plaintiffs do not rely on “speculation” that school 

districts will impose mask mandates if Paxton is enjoined. Instead, plaintiffs 

submitted uncontroverted evidence establishing that at least one ISD would 

immediately reinstate its mask mandate if Paxton is enjoined. In particular, 

plaintiffs rely on the affidavit by Williams, who attested that “if [Paxton] 

stopped enforcing GA-38, or there is an order barring enforcement of GA-38, 

the FBISD mask requirement would immediately go back into effect.” 

The unchallenged evidence also reflected that all the districts had 

mask mandates in place when GA-38 issued. The defendant produced no 

evidence that any of the school districts ever had opposition to the mask 

mandates in place. It was only after GA-38 issued and Paxton’s enforcement 

activity began that school districts began yielding to those threats and began 

lifting their mandates. If this Court affirms the district court’s injunction and 

holds that Section 504 and Title II required that school districts be allowed 

to exercise their discretion as to each individual plaintiff and provide an 

appropriate modification, it is completely predictable that the school districts 

would comply with the law by imposing some type of mask mandate. GA-38 

does not permit the school districts to do this. As the Supreme Court 

explained in Department of Commerce v. New York, plaintiffs can properly rely 

on the “predictable effect of government action on the decisions of third 

parties” as an element of their standing.17

Based on this evidence, if this Court upholds the injunction against 

Paxton (which was stayed after three weeks by a motions panel of this 

17 139 S. Ct. at 2566; see Franklin v. Massachusetts, 505 U.S. 788, 790–91 (1992) 

(finding redressability prong satisfied where actors who were not parties to the lawsuit 

could be expected to amend their conduct in response to a court’s declaration).

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Court18), FBISD and the other school districts would likely reimpose their 

mask mandates as necessary to grant a modification so that plaintiffs could 

safely attend school with their classmates. As a result, plaintiffs would no 

longer face the Hobson’s choice of either taking inadequate virtual classes, 

or attending school without a mask mandate despite the medical advice of 

their doctors. 

The district court recognized that ISDs could refuse to impose mask 

mandates if such mandates “fundamentally alter[ed]” the nature of school 

programs.19 But, as the district court correctly noted, Paxton “failed to 

present any evidence that would support a claim that mask requirements 

fundamentally alter the educational programs of local school districts.”20

Paxton had an opportunity to challenge the reasonableness of mask 

mandates—or show the availability of other measures—but he utterly failed 

to do so. In fact, during the proceedings below, Paxton submitted a single 

piece of evidence: a mass of raw data showing COVID-19 infection numbers 

in Texas public schools. He did not even provide an expert opinion to assist 

the district court or this Court in interpreting the data. Paxton’s decision not 

to produce evidence should be fatal to his arguments. Thus, on the facts 

before this Court, federal law obligates ISDs to impose the mask mandates 

that GA-38 forbids. It is therefore certain, not speculative, that an injunction 

against Paxton would remedy plaintiffs’ harm. 

18 See E.T. v. Paxton, 19 F.4th 760, 763 (5th Cir. 2021).

19 Under the ADA’s implementing regulations, a public entity need not provide a 

modification, even if it is “reasonable,” when it “fundamentally alters” the nature of the 

service, program, or activity. 28 C.F.R. § 35.130(b)(7)(i).

20 E.T. v. Morath, No. 1:21-CV-717, 2021 WL 5236553, at *13 (W.D. Tex. Nov. 10, 

2021).

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In sum, the disability discrimination plaintiffs suffered is a sufficient 

injury. Paxton’s enforcement activity was the de facto cause of this 

discrimination, and an injunction would remedy the injury. For these 

reasons, I am satisfied that plaintiffs established each element of standing.21

III.

As to the merits, I would affirm the district court’s injunction to the 

extent it bars Paxton’s enforcement of GA-38 against plaintiffs’ ISDs and 

prevents the ISDs from granting even a limited mandate that would allow 

plaintiffs to attend school. 

As the district court recognized, Title II and Section 504 and their 

implementing regulations place an “affirmative obligation” on public entities 

to make reasonable modifications in their policies and practices when 

necessary to avoid discrimination because of disability.22 Texas school 

districts are subject to Title II and Section 504 as public entities that receive 

21 In a Rule 28(j) letter to this Court, defendants cite Arc of Iowa v. Reynolds, 33 

F.4th 1042, 1044 (8th Cir. 2022), in which the Eighth Circuit found that a similar case was 

moot because of the lessened severity of the COVID-19 pandemic. However, as plaintiffs 

argue in a different Rule 28(j) letter, the Center for Disease Control (“CDC”) continues 

to recommend that people around vulnerable individuals, like plaintiffs, wear masks. Based 

on the ongoing nature of the pandemic, and that the CDC continues to recommend 

masking around vulnerable individuals, this case is not moot.

22 See Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 445-55 (5th Cir. 

2005), cert. denied, 547 U.S. 1098 (2006); see also Ridley Sch. Dist. v. M.R., 680 F.3d 260, 

281 (3d Cir. 2012) (requiring students to wash their hands before and after meals to protect 

on student in their classroom with severe food allergies); Alboniga v. School Bd. of Broward 

Cnty., 87 F. Supp. 3d 1319, 1323, 1344-45 (S.D. Fla. 2015) (allowing a service animal to 

accompany a student with a seizure disorder); K.N. v. Gloucester City Bd. of Educ., 379 F. 

Supp. 3d 334, 352 (D.N.J. 2019) (providing a one-to-one aide supported by a special 

education teacher to assist a student with autism).

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federal funding.23 GA-38 bars a school district from imposing even a limited 

mask requirement and must fall.24

Plaintiffs established and the district court found from unchallenged 

evidence that voluntary masking does not adequately protect plaintiffs. 

There is no basis from this record that vaccination, social distancing, and/or 

plexiglass can adequately substitute for masking to protect plaintiffs. 

Uncontradicted evidence supports the district court’s finding that masks are 

necessary.

However, I agree with Paxton that the district court’s injunction is 

overbroad. An injunction “should be no more burdensome to the defendant 

than necessary to provide complete relief to the plaintiffs.”25 Plaintiffs’ 

injuries would be remedied by a narrow injunction that prohibits Paxton from 

enforcing GA-38 against the seven ISDs in which plaintiffs attend schools to 

the extent that GA-38 bars the school districts from granting an 

accommodation under Section 504 and Title II by requiring some form of 

mask mandate. The injunction should be limited accordingly.

For the foregoing reasons, I would affirm the district court’s decision 

to enjoin Paxton’s enforcement of GA-38. However, because the injunction 

is overbroad, I would vacate the injunction and remand so that the district 

court can modify the injunction to bar Paxton from enforcing GA-38 against 

the seven ISDs plaintiffs attend but limit it to the extent that it precludes 

school districts the authority to grant a limited mask mandate to allow the 

23 42 U.S.C. § 12131(1)(B); 29 U.S.C. § 794(b)(2)(B).

24 See Mary Jo C. v. New York State & Loc. Ret. Sys., 707 F.3d 144, 163 (2d Cir 2013); 

see also North Carolina State Bd. Of Educ. v. Swann, 402 U.S.43, 45 (1971).

25 Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994).

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plaintiffs to attend school safely. Therefore, for these reasons, I respectfully 

dissent.

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