Days after declining to lift an administrative stay, the U.S. Court of Appeals for the Fifth Circuit has set an expedited schedule to hear the state's appeal of federal judge Alan D. Albright's decision to enjoin HB 900, Texas's controversial book rating law.
According to a scheduling order issued this week, the court will hear oral arguments on November 8. The state's appeal brief is due on October 20; the plaintiffs reply brief is due on October 30; amicus briefs are due on November 1; and the state's reply would be due November 3. That schedule could be delayed even longer, however, as the plaintiffs' lead attorney, Laura Prather, has a schedule conflict. In a motion filed late yesterday (which the state opposes) the plaintiffs have asked the court to move oral argument ideally to the week of December 4, but at least until the week of November 20.
The schedule comes after the court, in a two-line decision issued on October 5, said it would not hear the state's emergency motion for a stay separately and would jump to the state's challenge of Albright's preliminary injunction on the merits. However, the appeals court also declined to lift an administrative stay (issued without consideration of the merits of the case) it placed on Albright's injunction—a move that has effectively given the state its stay and has allowed the law to take effect despite being found unconstitutional.
Signed by Texas governor Greg Abbott on June 12, HB 900 requires book vendors, at their own expense, to review and rate books for sexual content under a vaguely articulated standard as a condition of doing business with Texas public schools. The law includes both the thousands of books previously sold to schools and any new books. Furthermore, the law gives the state the unchecked power to change the rating on any book, which vendors would then have to accept as their own or be barred from doing business with Texas public schools.
Administrative stays are commonly used to maintain the status quo until an appellate court can more fully consider arguments for emergency relief. And while it makes some sense that the Fifth Circuit would want to jump right to the state's appeal of Albright's injunction—after all, the state's arguments for a stay are basically the same as its arguments for a reversal—allowing the administrative stay to remain in effect is a puzzling decision, as it effectively moots the emergency relief the plaintiffs had sought and won from the district court, leaving booksellers in the state in a precarious position.
“Staying the preliminary injunction would radically upend the status quo,” the plaintiffs explained in an October 2 brief. “Plaintiffs would be immediately prohibited from selling books to public schools because they would be unable to review and rate every book ever sold to a public school, as required. To lift the prohibition, Plaintiffs would need to undertake the painstaking process of reviewing and rating hundreds of thousands of books, which would significantly disturb Plaintiffs’ businesses and cause economic injury, the reallocation of significant resources, and the potential closure of independent booksellers throughout Texas. A stay would also require public schools to change the way they store and purchase books and impact public school students’ access to books. Under the status quo as it exists now (and has existed for 170 years)—without Rating Provisions—none of these impingements are present.”
Although the Fifth Circuit could act quickly after hearing the case, it's worth noting that the court has yet to rule on an appeal of an injunction in another prominent Texas book banning case, Little v. Llano County, despite hearing oral arguments four months ago.
The appeal in this case comes after Albright orally enjoined the law at an August 31 hearing, following two previous hearings on the matter.
In a substantive 59-page written opinion and order, delivered on September 18, Albright called HB 900 “a web of unconstitutionally vague requirements” and said its burdens are “so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.”