E.T. v. Paxton

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 1, 2021
No. 21-51083 Lyle W. Cayce
Clerk
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 Elrod, Oldham, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
Texas Attorney General Kenneth Paxton seeks 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. Mindful that “[a] stay is an intrusion
No. 21-51083
into the ordinary processes of administration and judicial review, and
accordingly is not a matter of right,” Barber v. Bryant, 833 F.3d 510, 511 (5th
Cir. 2016) (internal quotation marks omitted), and having considered the
factors laid out by the Supreme Court in Nken v. Holder, 556 U.S. 418, 426
(2009), we conclude that a stay is warranted. Specifically, the Attorney
General has demonstrated a strong likelihood of success on the merits and
the prospect of irreparable injury absent a stay; has shown that maintaining
the status quo ante pending appeal will not risk substantial injury to the
plaintiffs; and, finally, that the public interest favors a stay. Accordingly, we
STAY the district court’s permanent injunction pending resolution of this
appeal on its merits.
I.
Governor Abbott issued Executive Order GA-38 (“GA-38”) on July
29, 2021. GA-38 compiled and superseded other orders issued in relation to
the Governor’s COVID-19 disaster proclamation of March 13, 2020. GA-38
provided, 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 that another person wear a face covering[.]”
This provision superseded “any face-covering requirement imposed by any
local governmental entity or official,” and it exercised the Governor’s
authority to suspend several Texas statutes.
Challenges to the validity of GA-38 under Texas state law were
brought in various venues. On August 17, 2021, a little over two weeks after
Governor Abbott issued GA-38, the parents of seven children who have
Down syndrome, asthma, hypogammaglobulinemia, cerebral palsy, heart
defects, bronchomalacia, bronchiectasis, spina bifida, and epilepsy, filed this
action in federal district court on behalf of their children. All seven children
are enrolled in Texas’s public schools. Most public schools in Texas began
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in-person classes for the 2021–22 school year between August 9 and August
23, 2021.
In their complaint, plaintiffs sought a declaration that enforcement of
GA-38 against public school districts violates federal law, specifically the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, the
Rehabilitation Act, 29 U.S.C. § 794, the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1415(l), and the American Rescue
Plan Act, Pub. L. No. 117-2, § 2001 (2021). Plaintiffs alleged that enforcing
GA-38 against public school districts denied them a quality education based
on their disabilities. They also sought preliminary and permanent statewide
injunctive relief barring Attorney General Paxton from enforcing the order. 1
The Attorney General filed a motion to dismiss, asserting that plaintiffs
lacked standing and, alternatively, that plaintiffs had failed to exhaust their
administrative remedies before filing suit or to state prima facie claims.
Without issuing any preliminary relief, the district court held the
motion to dismiss in abeyance and conducted a bench trial on October 6,
2021. On November 10, 2021, the district court issued an opinion finding
that plaintiffs had standing to sue Attorney General Paxton, and that GA-38
violated the ADA and the Rehabilitation Act and was preempted by both of
those statutes as well as the American Rescue Plan Act. Based on those
findings, the district court permanently enjoined the Attorney General from
enforcing GA-38 against public school districts “requiring masks.”
Attorney General Paxton appealed. He now seeks an emergency stay
of the district court’s injunction pending the resolution of the appeal.
1
Initially plaintiffs also sought injunctive relief against the Commissioner of the
Texas Education Agency and the Texas Education Agency itself. The district court
subsequently granted a motion to dismiss the claims against both defendants.
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II.
The factors we consider in determining whether to grant a stay are by
now axiomatic:
(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether issuance
of the stay will substantially injure the other parties interested
in the proceeding; and (4) where the public interest lies.
Nken, 556 U.S. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
The first two factors, the likelihood of success on the merits and a showing
of irreparable injury absent a stay, “are the most critical.” Id. Because the
district court issued its injunction after a bench trial, the merits panel of this
court will eventually review the district court’s findings of fact for clear error
and its legal findings de novo. Providence Behav. Health v. Grant Rd. Pub. Util.
Dist., 902 F.3d 448, 455 (5th Cir. 2018) (quoting Coe v. Chesapeake Expl.,
L.L.C., 695 F.3d 311, 316 (5th Cir. 2012)). Viewing them through that same
lens, we evaluate each of the Nken factors in turn.
A.
First, likelihood of success on the merits. Attorney General Paxton
offers four arguments to support his likely success on appeal. As a threshold
matter, he asserts that plaintiffs lack standing because they have failed to
demonstrate any injury-in-fact. Next, he argues that plaintiffs’ claims fail as
a matter of law because plaintiffs did not exhaust their administrative
remedies before filing suit as required by IDEA, see 20 U.S.C. § 1415(l); failed
to state prima facie claims under either the ADA or the Rehabilitation Act;
and because the American Rescue Plan Act does not provide any private right
of action. Third, he disputes plaintiffs’ contention that GA-38 is preempted
by federal law. Finally, he contends that the district court’s statewide
injunction is overbroad and should, if not set aside entirely, be more narrowly
tailored to provide plaintiffs relief in this case.
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1.
Fundamentally, federal courts may only exercise jurisdiction over
“‘Cases’ and ‘Controversies.’” Ghedi v. Mayorkas, 16 F.4th 456, 464 (5th
Cir. 2021) (citing U.S. Const. art. III, § 2). A “case” or “controversy”
only exists when a party has standing. And standing exists only when the
party plausibly alleges three elements: “(1) an ‘injury in fact,’ (2) that is
‘fairly . . . trace[able] to the challenged action of the defendant,’ and (3) that
is ‘likely . . . redress[able] by a favorable decision.’” Id. (alterations in
original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
Here, it is unlikely that the plaintiffs have standing to pursue their claims.
“To establish injury in fact, a plaintiff must show that he or she
suffered ‘an invasion of a legally protected interest’ that is ‘concrete and
particularized’ 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). An alleged injury must clear each of these hurdles to confer standing.
See id. at 340 (“We have made it clear time and time again that an injury in
fact must be both concrete and particularized.”) (collecting cases); Shrimpers
& Fishermen of RGV v. Tex. Comm’n on Env’t Quality, 968 F.3d 419, 424 (5th
Cir. 2020) (“[E]ven if a petitioner’s increased-risk harms are particularized,
they also must be actual or imminent.” (citations omitted)).
Granted, plaintiffs may well allege particularized harm given that each
of them alleges a disability that leaves them particularly vulnerable during the
pandemic. But they likely falter in showing any concrete, or actual or
imminent, injury as a result of the enforcement of GA-38. Plaintiffs assert
that the injury threatened by the enforcement of GA-38 “was and is the
deprivation of meaningful access to in-person school,” or, as the district
court characterized it, that plaintiffs “are either forced out of in-person
learning altogether or must take on unnecessarily greater health and safety
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risks than their nondisabled peers.” But plaintiffs have not shown that they
face such an “either/or” choice as a result of GA-38, and the district court’s
conclusion that they do was likely erroneous.
While plaintiffs disclaim that their alleged injury is “the increased risk
of contracting [COVID-19] absent a mask mandate,” as the Attorney General
asserts in his motion, at essence, their claims—and the district court’s
injunctive relief—wholly rest on exactly that theory. Distilled down, their
alleged harm—deprivation of access to in-person school—wholly derives
from the assumption that the Attorney General’s enforcement of GA-38’s
prohibition of local mask mandates increases plaintiffs’ risk of contracting
COVID-19 while attending school. Such an assumption is, after all, the only
alleged basis by which the plaintiffs could be “forced out of in-person
learning.” But “[a] ‘concrete’ injury must be ‘de facto’; that is, it must
actually exist. . . . When [the Supreme Court has] used the adjective
‘concrete,’ [it has] meant to convey the usual meaning of the term—‘real,’
and not ‘abstract.’” Spokeo, 578 U.S. at 340 (quoting Black’s Law
Dictionary 479 (9th ed. 2009); Webster’s Third New
International Dictionary 472 (1971); Random House
Dictionary of the English Language 305 (1967)).
The risks of contracting COVID-19 for these plaintiffs are certainly
real, but the alleged injury to plaintiffs from the enforcement of GA-38 is, at this
point, much more abstract. This is so because the binary choice envisioned
by the district court—either stay home or catch COVID-19—is a false one:
it wholly elides the various accommodations available to the plaintiffs (e.g.,
distancing, voluntary masking, class spacing, plexiglass, and vaccinations) to
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ensure a safer learning environment, regardless of GA-38’s prohibition of
local mask mandates. 2
Beyond whether plaintiffs allege a “concrete” injury, they also likely
fail to show any actual or imminent injury as a result of the enforcement of
GA-38. This is so because “[i]ncreased-risk claims—even when they are
particularized—often cannot satisfy the ‘actual or imminent’ requirement.”
Shrimpers & Fishermen of RGV, 968 F.3d at 424. Indeed,
Much government regulation slightly increases a citizen’s risk
of injury—or insufficiently decreases the risk compared to
what some citizens might prefer. . . . Opening the courthouse
to these kinds of increased-risk claims would drain the “actual
or imminent” requirement of meaning [and] expand the
“proper—and properly limited”—constitutional role of the
Judicial Branch beyond deciding actual cases or
controversies. . . .
Id. (quoting Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489
F.3d 1279, 1295 (D.C. Cir. 2007) (Kavanaugh, J.)) (cleaned up). As noted
above, given the other preventative measures available to plaintiffs and the
schools they attend, any injury-in-fact arising from the enforcement of GA-
38 appears speculative or tentative, not actual or imminent. Cf. Ghedi, 16
F.4th at 465 (concluding that the alleged injury was “real and immediate”
and thus conferred standing).
2
Even assuming that plaintiffs’ alleged injury is the deprivation of access to in-
person public education, on the record before us, any deprivation also appears to be
attributable to choices made by plaintiffs, not Attorney General Paxton. In other words,
any injury alleged by plaintiffs would be “self-inflicted,” as the Attorney General contends,
and thus insufficient to confer standing. GA-38 does not bar plaintiffs’ physical access to
school or require them to resort to virtual learning. Nor do Attorney General Paxton’s
actions in enforcing GA-38 hinder access, given the other available accommodations
discussed above the line.
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Lastly, Plaintiffs may lack standing to assert their claims against the
Attorney General because they cannot show that any injury “is ‘likely . . .
redress[able] by a favorable decision.’” Id. at 464 (quoting Lujan, 504 U.S.
at 560–61). If GA-38 remains enjoined, neither plaintiffs nor Attorney
General Paxton has the authority to impose mask mandates in particular
schools. Plaintiffs allege that their schools would do so, but nothing in the
relief afforded by the district court would require the schools to remedy
plaintiffs’ alleged injury via local mask mandates.
For these reasons, plaintiffs have likely failed to demonstrate standing.
2.
Beyond the question of plaintiffs’ standing, their claims likely fail on
the merits as a matter of law. The record indicates that the plaintiffs have
not exhausted their administrative remedies under IDEA. See 20 U.S.C.
§ 1415(l). Reviewing this issue de novo, we conclude, contrary to the district
court, that the plaintiffs were likely required to do so before bringing their
ADA or Rehabilitation Act claims in court.
When a plaintiff “seeks redress for a school’s failure to provide a [free
appropriate public education]” IDEA applies, even if the complaint is “not
phrased or framed in precisely that way.” Fry v. Napoleon Cmty. Schs., 137 S.
Ct. 743, 755 (2017). IDEA requires that “before the filing of a civil action
under [the ADA and the Rehabilitation Act] seeking relief that is also
available under this subchapter, [administrative] procedures . . . shall be
exhausted[.]” 20 U.S.C. § 1415(l). The plaintiffs’ arguments that GA-38
denies them an appropriate in-person state-sponsored education in violation
of the ADA and the Rehabilitation Act likely fall under the auspices of the
IDEA’s administrative exhaustion requirements.
To determine if IDEA applies, courts generally must answer two
questions: “First, could the plaintiff have brought essentially the same claim
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if the alleged conduct had occurred at a public facility that was not a school . . .
[a]nd second, could an adult at the school—say, an employee or visitor—
have pressed essentially the same grievance?” Fry, 137 S. Ct. at 756. If both
questions can be answered in the negative, IDEA and its administrative
exhaustion requirements apply.
The district court framed the Fry questions around plaintiffs’ physical
access to their schools, concluding that IDEA’s administrative exhaustion
requirements were not antecedent to plaintiffs’ claims because they could
have brought “essentially the same claim” against another public facility, and
an adult at the school could “have pressed essentially the same grievance.”
See id. Setting aside the logical import of the district court’s analysis—
namely, that any plaintiff could insist upon a mask mandate at any public
facility or assert an ADA or Rehabilitation Act claim based on the entity’s
failure to impose one—the court’s analysis misapprehends the gravamen of
plaintiffs’ claims. Plaintiffs do not really center their claims on a deprivation
of physical access, even though they focus on in-person education at school.
Instead, the plaintiffs at base allege something very particular: the
deprivation of an in-person state-sponsored education because of their risk of
contracting COVID-19 without a mask mandate. Could such a claim be
brought against “a public theater or library?” Id. Arguably no, as the
plaintiffs seek to enjoin GA-38 in order to allow their schools to impose mask
mandates, which they contend are necessary for them to receive an in-person
education on par with other students. The essential aspect of plaintiffs’
claims, access to in-person learning, could not be levied against “a public
facility that was not a school.” Id. As to the second question, a non-student
adult at the school could obviously not press the same grievance because he
or she would not be at the school to access in-person learning. Because IDEA
likely applies, and because nothing in the record establishes that plaintiffs
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pursued any administrative remedies before filing suit, the district court
likely lacked jurisdiction over their claims for this reason as well.
Even if a failure to exhaust remedies does not bar plaintiffs’ claims,
the record is devoid of evidence that plaintiffs have made any requests for
reasonable accommodation under the ADA or the Rehabilitation Act.
Glossed over in both plaintiffs’ briefing and the district court’s opinion is any
acknowledgment that plaintiffs are not entitled to their preferred
accommodation, but only a reasonable accommodation, and that “[i]t is the
plaintiff’s burden to request reasonable accommodations.” Jenkins v. Cleco
Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007). The district court’s analysis
rests on the faulty premise that the only accommodation available to plaintiffs
is their schools’ ability to impose mask mandates. But as discussed above,
there are any number of other ways schools could accommodate plaintiffs’
disabilities without traversing either GA-38 or federal law.
Regardless, a request for reasonable accommodation is generally a part
of a prima facie case for relief under the ADA and Rehabilitation Act. E.g.,
Smith v. Harris Cnty., 956 F.3d 311, 317–18 (5th Cir. 2020) (citing Windham
v. Harris Cnty., 875 F.3d 229, 237 (5th Cir. 2017)). Without evidence that
they requested some reasonable accommodation, plaintiffs would have to
demonstrate that the reasonable accommodation they proposed to the court,
a mask mandate, was necessary and obvious. Id. (quoting Taylor v. Principal
Fin. Grp., Inc., 93 F.3d 155, 165 (5th Cir. 1996)). Given the availability of
vaccines, voluntary masking, and other possible accommodations—options
barely acknowledged by either plaintiffs or the district court—the record
before us likely does not support the conclusion that a mask mandate would
be both necessary and obvious under the ADA or the Rehabilitation Act.
Plaintiffs thus likely fail to make out a prima facie case under either statute.
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3.
Next, the Attorney General disputes the district court’s conclusion
that the ADA, the Rehabilitation Act, and the American Rescue Plan Act
preempt GA-38. Federal law can preempt state actions in three situations:
first, Congress may expressly preempt state actions; second, Congress can so
comprehensively legislate in an area that States have no ability to supplement
Congress’s enactments; and third, state actions can directly conflict with
federal action. City of Morgan City v. S. La. Elec. Co-op. Ass’n, 31 F.3d 319,
322 (5th Cir. 1994) (citing Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n, 461 U.S. 190, 203–04 (1983)). State action can
directly conflict with federal action if “a provision of state law may be
incompatible with a federal statute such that compliance with both is a
‘physical impossibility[,]’ . . . [or] if its application would disturb, interfere
with, or seriously compromise the purposes of the federal statutory scheme.”
Id. (quoting Pac. Gas & Elec. Co., at 204, 220–21).
The district court’s holding that the ADA and the Rehabilitation Act
preempt GA-38 is seemingly based on the premise that application of GA-38
would make it impossible for schools to comply with the ADA or the
Rehabilitation Act, or would interfere with the purposes of those federal laws,
because a mask mandate would be the only way to provide plaintiffs an in-
person public education. But, as outlined above, and bearing in mind that
IDEA’s exhaustion requirement may well bar this argument from the outset,
that does not appear to be the case. Other means exist to control the spread
of COVID-19 in school settings like vaccination, social distancing, plexiglass,
and voluntary mask wearing. Plaintiffs are not entitled to their preferred
accommodation under the ADA and Rehabilitation Act if other reasonable
accommodations are available. Accordingly, it does not appear that GA-38
renders it a “physical impossibility” for schools to comply with the ADA or
the Rehabilitation Act, or that GA-38 “would disturb, interfere with, or
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seriously compromise the purposes of” either law. Id. Therefore, it was
likely erroneous for the district court to hold that GA-38 was preempted by
either the ADA or the Rehabilitation Act.
Further, to the extent this argument is even properly before us, 3 we
do not read the American Rescue Plan Act to preempt GA-38’s prohibition
of local mask mandates, as the district court did. The district court based its
conclusion on excerpts from the Department of Education’s rule of April 22,
2021, relating to use of American Rescue Plan Act funds by local educational
agencies. That rule provides that funds can be used “for a wide variety of
activities related to educating students during the COVID-19
pandemic . . . including universal and correct wearing of masks[.]”
American Rescue Plan Act Elementary and Secondary School Emergency
Relief Fund, 86 Fed. Reg. 21,195–96 (Apr. 22, 2021). The rule further
clarifies that a local education agency must include a plan publicly maintained
on its website that states “how it will maintain the health and safety of
students . . . and the extent to which it has adopted policies, and a description
of any such policies, on each of the CDC’s safety recommendations
including: Universal and correct wearing of masks[.]” Id. at 21,200–01.
Rather than requiring local educational agencies to adopt universal
masking, the American Rescue Plan Act requires local educational agencies
to communicate with the public regarding what requirements, if any, it
maintains regarding masking, and why. GA-38 does not interfere with this
responsibility, other than removing localized mask mandates from the range
3
The plaintiffs’ argument that the American Rescue Plan Act provides a private
cause of action is tenuous at best. And the district court’s bald invocation of the Supremacy
Clause and its equitable jurisdiction fails to fill the gap. We discern no language in the act,
and plaintiffs point us to none, that appears to create such an action. For this additional
reason, plaintiffs’ claims, to the extent they are based on the American Rescue Plan Act,
likely fail as well.
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No. 21-51083
of policies and practices for safe operation of schools, so it was likely error for
the district court to conclude that GA-38 was preempted on this ground.
4.
Finally, assuming that 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.
Injunctions must be narrowly tailored within the context of the substantive
law at issue to address the specific relief sought. Scott v. Schedler, 826 F.3d
207, 211 (5th Cir. 2016) (quoting Doe v. Veneman, 380 F.3d 807, 818 (5th Cir.
2004)). This means that an injunction cannot “encompass more conduct
than was requested or exceed the legal basis of the lawsuit.” Id. at 214 (citing
Veneman, 380 F.3d at 819). First, the injunction could have been tailored to
address only the seven plaintiffs in this action, as well as their school districts.
More generally, the district court’s injunction could also have been tailored
to require only individualized accommodations by schools, on a case-by-case
basis, while leaving GA-38’s general ban on mask mandates in place.
Imposing a broad-brush injunction to prohibit enforcement of GA-38 in all
schools in Texas was likely erroneously overbroad.
For all these reasons, Attorney General Paxton has made the requisite
showing of a likelihood of success on the merits of his appeal, favoring a stay
pending appeal.
B.
The other Nken factors also favor a stay pending appeal. We briefly
address each of them.
As for irreparable injury absent a stay, the second Nken factor weighs
in favor of the Attorney General because “[w]hen a statute is enjoined, the
State necessarily suffers the irreparable harm of denying the public interest
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in the enforcement of its laws.” Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir.
2017) (citing Maryland v. King, 567 U.S. 1301, 1303–04 (2012) (Roberts, C.J.,
in chambers); Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323,
1324 (1984) (Rehnquist, J., in chambers)). While this case centers on an
executive order issued by the Governor under his emergency authority rather
than enforcement of a statute enacted by the plenary legislative authority of
the people, the same reasoning applies. See Tex. Gov’t Code § 418.012
(The Governor’s “[e]xecutive orders, proclamations, and regulations have
the force and effect of law.”). In our “system of federal courts representing
the [n]ation, subsisting side by side with 50 state judicial, legislative, and
executive branches, appropriate consideration must be given to principles of
federalism in determining the availability and scope of equitable relief.”
Rizzo v. Goode, 423 U.S. 362, 379 (1976) (citing Doran v. Salem Inn, Inc., 422
U.S. 922, 928 (1975)). Here, those principles counsel acknowledgement that
Texas’s public officials are charged with carrying out Texas’s public policy,
and enjoining those officials and that policy injures the state. See Mi Familia
Vota v. Abbott, 834 F. App’x 860, 864 (5th Cir. 2020) (per curiam) (granting
stay to Texas; noting that an executive order has “the force and effect of
law,” so the State “suffers the irreparable harm of denying the public interest
in the enforcement of its laws”); accord Richardson v. Tex. Sec’y of State, 978
F.3d 220, 243 (5th Cir. 2020) (holding that an injunction requiring exercises
of authority by the Texas Secretary of State irreparably harmed Texas
(quoting Veasey, 870 F.3d at 391)).
Next, in considering whether issuance of a stay pending appeal will
substantially injure the other party, “the maintenance of the status quo is an
important consideration in granting a stay.” Barber, 833 F.3d at 511 (internal
quotation marks omitted) (quoting Dayton Bd. of Educ. v. Brinkman, 439 U.S.
1358, 1359 (1978)). GA-38 has been in effect since July 29, 2021. Since the
plaintiffs filed this action on August 17, 2021, they have not requested
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emergency relief, and the district court never entered any preliminary relief,
despite plaintiffs’ request for a preliminary injunction in their complaint.
That procedural posture, coupled with the tenuous and speculative nature of
the injury alleged by plaintiffs to result from GA-38’s prohibition of local
mask mandates, tends to establish that preservation of the status quo ante will
not substantially injure plaintiffs. Thus, this factor favors a stay, i.e.,
maintaining the status quo by leaving GA-38 in effect, pending appeal.
Finally, where the public interest lies. Our analysis of the fourth Nken
factor follows much of our analysis of the second factor. As Attorney General
Paxton argues, when “the State is the appealing party, its interest and harm
merge with that of the public.” Veasey, 870 F.3d at 391 (citing Nken, 556 U.S.
at 435). For this reason, the fourth factor also weighs in favor of a stay.
IV.
For well over a year and a half now, every American has grappled with
navigating the safest course through an unpredictable pandemic and its
continuing effects on our nation in the face of risk, disruption, and shifting
guidance. None of our above discussion should be taken to suggest that
plaintiffs—and their parents—do not have legitimate concerns about the
pandemic or the risks they face from COVID-19. But, at least at this
preliminary stage, it is unclear that plaintiffs have stated any injury-in-fact
sufficient to confer standing, or that either GA-38, or Attorney General
Paxton’s actions in enforcing it, result in any cognizable deprivation of
plaintiffs’ access to in-person public education.
Because we conclude the Nken factors weigh in favor of granting a stay
pending the resolution of this appeal on its merits, Attorney General
Paxton’s emergency motion is GRANTED, and the district court’s
injunction prohibiting the enforcement of GA-38 in Texas public schools is
hereby STAYED pending appeal.
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