GSA Network et al v. Morath et al

OCR transcription for search; preserved printed pages are authoritative

Case 4:25-cv-04090 Document 89 Filed 02/20/26 in TXSD Page 1 of 44

United States District Court
Southem District of Texas

ENTERED
February 20, 2026
Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

GSA NETWORK, et al, § CIviL ACTION NUMBER
Plaintiffs, § 4:25-cv-04090
§
§
versus § JUDGE CHARLES ESKRIDGE
§
§
MIKE MORATH, et al, §
Defendants. §

OPINION AND ORDER DISMISSING
COMMISSIONER OF TEXAS EDUCATION AGENCY
AND GRANTING PRELIMINARY INJUNCTION

The Texas Legislature recently enacted a law passed
as Senate Bill 12. Generally stated, it addresses
educational policy in Texas and contains four provisions
challenged in this action:

o The Club Provision, which prohibits public
school clubs “based on sexual orientation or
gender identity.”

o The DEI Provision, which prohibits assignment
and pursuit of “diversity, equity, and inclusion
duties” in public schools.

o The Social Transition Provision, which
requires school districts to adopt policies
prohibiting employees from “assisting”
students with “social transitioning.”

o The LGBT Curriculum Provision, which
prohibits public school employees or third
parties from providing “instruction, guidance,
activities, or programming regarding sexual
orientation or gender identity.”

Texas Education Code §§11.005, 11.401, 28.0048, 33.0815.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

2
Plaintiffs are two non-profit organizations with
missions promoting youth advocacy, a labor union for
Texas school employees, two high school students, and a
teacher. They challenge all four provisions under the First
Amendment of the United States Constitution. They also
challenge the Club Provision as contrary to federal law
under the Equal Access Act. See 20 USC §4071(a), (b). See
Dkt 32 at ¶¶10–15, 204–311 (amended complaint).
Defendants are Mike Morath, in his capacity as the
Commissioner of the Texas Education Agency, and three
Texas independent school districts, being Houston, Katy,
and Plano ISDs. Id at ¶¶16–19.
The following motions are resolved here.
The motion to dismiss brought by Commissioner
Morath is granted. Dkt 57. Plaintiffs lack standing to
pursue action against him because they haven’t shown that
their presently alleged injuries are traceable to him or
redressable by enjoining him. Any injury to Plaintiffs
instead arises from implementation and enforcement
actions by the ISDs, and not by the Commissioner himself.
The motion to dismiss brought by Katy ISD is denied.
Dkt 53. As just noted, Katy ISD has implemented and
enforced policies pursuant to SB 12 that Plaintiffs allege
have resulted in constitutional deprivations. It is thus
properly subject to suit under 42 USC §1983.
The motion by Plaintiffs for preliminary injunction is
granted as unopposed. Dkt 33. This may seem a curious
result, as this is no doubt important litigation with respect
to a newly enacted Texas statute. But it is the necessary
consequence of the defense strategy in this action.
Houston, Katy, and Plano ISDs specifically decline to
take a position as to SB 12 on the merits, even after
implementing policies or otherwise taking action to accord
with its overall directive. See Dkts 54, 56 & 59. Nor do they
challenge the credibility or factual averments of the several
declarations submitted by Plaintiffs, which came in by
stipulation. See Dkt 60. Principles of party presentation
and waiver dictate that it simply isn’t the province of a
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federal court to muster or consider possible arguments that
defendants don’t themselves sponsor.
As such, Houston, Katy, and Plano ISDs will be
enjoined from enforcing their policies with respect to the
Club, DEI, Social Transition, and LGBT Curriculum
Provisions. With the dismissal of Commissioner Morath,
however, such preliminary injunction cannot extend
statewide. Any challenge to implementation of SB 12 in
other independent school districts is thus for separate
litigation before other federal courts with jurisdiction.
Given their failure to articulate a position on the merits
to this point, the ISDs are further ordered to file a
statement of position within fourteen days as to whether
they intend to defend SB 12 and their actions enforcing it,
or whether they will seek representation from the Office of
the Attorney General. See Texas Education Code
§11.151(e) (allowing school districts to request assistance
of Attorney General on legal matters); Texas Government
Code §402.010 (establishing procedure for notifying
Attorney General of challenge to constitutionality of state
law). Or they may identify another course altogether.
1. Background
a. Senate Bill 12
The parties refer to Senate Bill 12 as SB 12. The Texas
Legislature described it as a law “relating to parental
rights in public education, to certain public school
requirements and prohibitions regarding instruction,
diversity, equity, and inclusion duties, and social
transitioning, and to student clubs at public schools.” See
SB 12, 89th Legislature, RS (2025). The Governor of Texas
signed it into law on June 20, 2025, and it went into effect
on September 1, 2025.
Set out next are four substantive provisions of SB 12
challenged by Plaintiffs, followed by other pertinent
provisions. Unless otherwise noted, all statutory citations
are to sections of the Texas Education Code.
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i. Club Provision
Section 27 of SB 12 places certain eligibility
requirements on student clubs in public schools. See
§33.0815. It provides in full:
(a) Subject to Subsection (b), a school
district or open-enrollment charter school
may authorize or sponsor a student club.
(b) A school district or open-enrollment
charter school may not authorize or
sponsor a student club based on sexual
orientation or gender identity.
(c) A school district or open-enrollment
charter school must require the written
consent of the parent of or person standing
in parental relation to a student enrolled in
the district or school before the student
may participate in a student club
authorized or sponsored under Subsection
(a) at the district or school.
ii. DEI Provision
Section 3 of SB 12 prohibits diversity, equity, and
inclusion duties in public schools. See §11.005.
Subsection (a) defines as follows:
In this section, “diversity, equity, and
inclusion duties” means:
(1) influencing hiring or employment
practices with respect to race, sex, color, or
ethnicity except as necessary to comply
with state or federal antidiscrimination
laws;
(2) promoting differential treatment of or
providing special benefits to individuals on
the basis of race, color, or ethnicity;
(3) developing or implementing policies,
procedures, trainings, activities, or pro-
grams that reference race, color, ethnicity,
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gender identity, or sexual orientation
except:
(A) for the purpose of student recruitment
efforts by colleges and universities
designated as historically black colleges
and universities in collaboration with
school districts or open-enrollment charter
schools; or
(B) as necessary to comply with state or
federal law; and
(4) compelling, requiring, inducing, or
soliciting any person to provide a diversity,
equity, and inclusion statement or giving
preferential consideration to any person
based on the provision of a diversity,
equity, and inclusion statement.
Subsection (b) then dictates as follows:
Except as required by state or federal law,
a school district:
(1) may not assign diversity, equity, and
inclusion duties to any person; and
(2) shall prohibit a district employee,
contractor, or volunteer from engaging in
diversity, equity, and inclusion duties at,
for, or on behalf of the district.
Subsection (c) provides for implementation and
enforcement of the DEI Provision by school districts as
follows:
A school district shall adopt a policy and
procedure for the appropriate discipline,
including termination, of a district
employee or contractor who intentionally
or knowingly engages in or assigns to
another person diversity, equity, and
inclusion duties. . . .
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Subsection (d) relatedly provides that any disciplined
employee is entitled to due process and an opportunity to
appeal any adverse action.
Subsection (e) then contains narrowing exceptions,
including:
Nothing in this section may be construed to:
. . .
(3) affect a student’s rights under the First
Amendment to the United States
Constitution or Section 8, Article I, Texas
Constitution; . . .
(5) apply to:
(A) classroom instruction that is consistent
with the essential knowledge and skills
adopted by the State Board of Education;
(B) the collection, monitoring, or reporting of
data;
(C) a policy, practice, procedure, program, or
activity intended to enhance student
academic achievement or postgraduate
outcomes that is designed and implemented
without regard to race, sex, color, or
ethnicity; or
(D) a student club that is in compliance with
the requirements of [the Club Provision].
SB 12 elsewhere requires that school districts certify
compliance with the DEI Provision to the Texas Education
Agency annually. See §39.008(a). The agency then “shall
post each certification received under Subsection (a) on the
agency’s Internet website.” See §39.008(c).
iii. Social Transition Provision
Section 7 of SB 12 requires school districts to adopt
policies prohibiting employees from assisting students with
social transitioning. See §11.401.
Subsection (a) defines as follows:
In this subchapter, “social transitioning”
means a person’s transition from the
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person’s biological sex at birth to the
opposite biological sex through the
adoption of a different name, different
pronouns, or other expressions of gender
that deny or encourage a denial of the
person’s biological sex at birth.
Subsection (b) provides for the implementation and
enforcement of the Social Transition Provision by school
districts:
The board of trustees of a school district
shall adopt a policy prohibiting an
employee of the district from assisting a
student enrolled in the district with social
transitioning, including by providing any
information about social transitioning or
providing guidelines intended to assist a
person with social transitioning.
Subsection (c) provides a means by which parents and
employees can report suspected violations of such policy,
which then requires the school district to investigate:
A parent of a student enrolled in the
district or a district employee may report to
the board of trustees of the district a
suspected violation of the policy adopted
under Subsection (b). The board shall
investigate any suspected violation and
determine whether the violation occurred.
If the board determines that a district
employee has assisted a student enrolled at
the district with social transitioning, the
board shall immediately report the
violation to the commissioner.
SB 12 elsewhere allows parents of enrolled students to
seek relief for violation of the Social Transition Provision
by filing a grievance to the board of trustees of the school
district pursuant to §26.011. See §11.402.
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iv. LGBT Curriculum Provision
Section 24 of SB 12 restricts instruction regarding
sexual orientation and gender identity. See §28.0043.
Subsection (a) states:
A school district, open-enrollment charter
school, or district or charter school
employee may not provide or allow a third
party to provide instruction, guidance,
activities, or programming regarding
sexual orientation or gender identity to
students enrolled in prekindergarten
through 12th grade.
Subsection (b) then states exceptions, including:
This section may not be construed to:
(1) limit a student’s ability to engage in
speech or expressive conduct protected by
the First Amendment to the United States
Constitution or by Section 8, Article I,
Texas Constitution, that does not result in
material disruption to school activities;
(2) limit the ability of a person who is
authorized by the district to provide
physical or mental health-related services
to provide the services to a student, subject
to any required parental consent; or
(3) prohibit an organization whose
membership is restricted to one sex and
whose mission does not advance a political
or social agenda from meeting on a school
district or open-enrollment charter school
campus.
v. Other pertinent provisions
The briefing of the parties almost entirely ignores
Section 1 of SB 12, which contains an important, threshold
provision. Titled Infringement of Parental Rights Prohib-
ited, it provides in full:
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The fundamental rights granted to parents
by their Creator and upheld by the United
States Constitution, the Texas Constitu-
tion, and the laws of this state, including
the right to direct the moral and religious
training of the parent’s child, make
decisions concerning the child’s education,
and consent to medical, psychiatric, and
psychological treatment of the parent’s
child under Section 151.001, Family Code,
may not be infringed on by any public
elementary or secondary school or state
governmental entity, including the state or
a political subdivision of the state, unless
the infringement is:
(1) necessary to further a compelling state
interest, such as providing life-saving care
to a child; and
(2) narrowly tailored using the least
restrictive means to achieve that
compelling state interest.
§1.009.
Section 11 of SB 12 further provides that compliance
with the parental-rights provision is mandatory:
Unless otherwise provided by law, a board
of trustees . . . shall comply with Section
1.009 and may not limit parental rights or
withhold information from a parent
regarding the parent’s child.
§26.001(c).
Another threshold provision of SB 12 charges Texas
school districts with implementing and enforcing the
entirety of SB 12, as follows:
(a) In this section, “public elementary or
secondary school” means a school district
and a district, campus, program, or school
operating under a charter under Chapter
12.
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(b) A public elementary or secondary
school, the school’s governing body, and the
school’s employees shall implement and
comply with each policy the school is
required to adopt under this code or other
law.
§1.007.
Given the points at issue between the parties below, it
is important to note that no direct power or duty is given to
the Commissioner with regard to implementation or
enforcement as to each of Sections 3, 7, 24, and 27 of SB 12,
which set out the terms of the DEI, Social Transition,
LGBT Curriculum, and Club Provisions, respectively. By
comparison, Sections 2 and 5 specifically state that the
Commissioner “may adopt rules as necessary to
implement” sections as to facility usage reports and trustee
information posted on the TEA website. See §7.0611(e),
§11.1518(e).
Preexisting aspects of the Texas Education Code also
bear emphasis regarding the extent of oversight and
control accorded to school districts. For instance,
§11.151(b) articulates a very broad statement of ISD
independence and authority, stating with emphasis:
Except as provided by Sections 39A.201
and 39A.202 [pertaining to circumstances
under which TEA Commissioner may act
with respect to school districts and scope of
such authorized actions], the trustees [of
an independent school district] as a body
corporate have the exclusive power and
duty to govern and oversee the manage-
ment of the public schools of the district. All
powers and duties not specifically dele-
gated by statute to the agency or to the
State Board of Education are reserved for
the trustees, and the agency may not
substitute its judgment for the lawful
exercise of those powers and duties by the
trustees.
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b. Implementation by school districts
SB 12 went into effect on September 1, 2025. Houston,
Katy, and Plano ISDs don’t dispute that they have adopted
policies and taken actions in compliance with SB 12 for the
2025/26 school year. See Dkts 54, 56 & 59.
For example, the board of trustees of Katy ISD passed
a “Resolution Regarding Senate Bill 12 and Parent Rights”
on August 25, 2025. See Dkt 53-1. It states, “All policies
shall be implemented and followed.” Id at ¶1. It also
includes directives addressing each of the challenged SB 12
provisions. See id at ¶¶3, 4, 5, 21 & 23.
The board of trustees for Plano ISD provided similar
guidance in August 2025 with a presentation titled “Back
to School Legislative Requirements.” Dkt 33-5 at 10–30.
The presentation states that SB 12 “restricts classroom
discussions of politically or socially controversial topics,
requiring them to be tied to TEKS and presented
neutrally.” Id at 25. It also states:
In response to SB 12, Plano ISD will:
• Review curriculum documents to ensure
no prohibited content is included.
• Reinforce policies and practices to sup-
port educators in delivering TEKS-
aligned content and restrict topics
deemed politically or socially contro-
versial.
• Prohibit instruction or programming
related to sexual orientation, DEI prac-
tices or gender identity.
• Not use different names or pronouns
inconsistent with the student’s biological
sex.
• Apply these standards across class-
rooms, clubs, events, guest speakers,
and all instructional-day activities . . .
• Prohibit clubs and organizations based
on sexual orientation or gender identity.
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Id at 25–26.
Plano ISD also circulated to its teachers and staff a
document titled “Legislative Guidance for Plano ISD Staff
(2025–2026).” Id at 38–42. It contains directives as to the
four challenged SB 12 provisions. Id at 38–39. The
document also stated a requirement that staff sign and
attest to compliance with the directives, while further
providing, “Violations of these laws may result in
disciplinary action, including termination.” Id at 41–42.
No actual policy from Houston ISD is presently part of
the record. And its answer “denies that its board has
adopted policies regarding Senate Bill No. 12.” Dkt 58
at ¶48. But it nonetheless agrees that it is taking action in
conformance, for example asserting that it “is obviously
required to follow state law unless that law is amended or
determined by a court with appropriate jurisdiction and
authority to be unenforceable.” Dkt 59 at 2.
c. This litigation
Six Plaintiffs challenge SB 12 in this action—three
organizations, two students, and one teacher. Each
submitted a declaration, all of which are uncontested for
purposes here. See Dkt 60 (joint notice and stipulation).
GSA Network is a national 501(c)(3) nonprofit
organization whose “mission is to empower and train
queer, transgender, and allied youth leaders to advocate,
organize, and mobilize an intersectional movement for
safer schools and healthier communities.” Dkt 33-2 at ¶2.
GSA Network is a membership-based organization made
up of registered GSA clubs, student leaders organizing
registered GSA clubs, and state-level organizational
partners. Id at ¶7. It asserts constitutional claims on behalf
of itself and its members against Commissioner Morath
and Plano ISD, and an Equal Access Act claim on behalf of
its members against Plano ISD. Dkt 32 at ¶¶71, 285.
Generally stated, GSA Network claims that SB 12 “would
prevent [it] from being able to support GSA clubs and their
activities in Texas, prevent student members from being
able to form or join GSA clubs in Texas, and prohibit or
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drastically limit many of the activities that GSA Network
and GSA clubs engage in at schools.” Dkt 33-2 at ¶5. It
maintains that the Club Provision will likely result in
elimination of its twenty-two clubs registered in Texas in
spring of 2025, as already happened for one GSA club in
Plano ISD. Id at ¶24. It further maintains that the other
three provisions will limit the ability of school faculty to
participate in GSA clubs and share information with
students regarding topics frequently discussed in GSA
clubs. Id at ¶¶27–32.
Students Engaged in Advancing Texas is a “non-
partisan and nonprofit grassroots civic organization . . .
whose mission is to empower youth through hands-on civic
engagement, advocacy, and leadership development to
address systemic inequities and drive change in Texas
communities.” Dkt 33-3 at ¶2. SEAT states that it
advances its mission, in part, by “providing information
and resources” to clubs in Texas schools and by engaging
in “programs and activities that reference race, ethnicity,
gender identity, and sexual orientation,” and “other topics
of public concern.” See id at ¶3. It asserts constitutional
claims on behalf of itself and its members against
Commissioner Morath, Houston ISD, and Katy ISD.
Dkt 32 at ¶91.
Texas American Federation of Teachers is a labor union
that represents over 66,000 employees throughout Texas,
including teachers, librarians, counselors, nurses, teaching
assistants, and other school employees. Dkt 33-6 at ¶2
(declaration). It states that it “advocates for the
employment rights of its members and champions high
quality public education, fairness, democracy, and
economic opportunity for students, families, and
communities.” Ibid. Texas AFT asserts claims on behalf of
its members against Commissioner Morath, Houston ISD,
Katy ISD, and Plano ISD. Id at ¶8. It contends that, if the
challenged provisions of SB 12 aren’t enjoined, its members
will have their free speech and due process rights impaired.
Id at ¶7.
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Adrian Moore is a high school senior in Katy ISD.
Moore’s mother, Julie Johnson, submitted an explanatory
declaration. Dkt 33-7. Johnson says that Moore was born
female but now identifies as a “gay, transgender boy” and
has used the first name of Adrian at school for the past five
years. Dkt 33-7 at ¶¶3, 19. Johnson has requested those at
school continue to use that preferred name, but the
teachers “have been explicitly instructed” that they can no
longer do so. Dkt 33-7 at ¶19. The Diversity Club to which
Moore belonged has also been shut down. Id at ¶¶12, 18.
Johnson also says that Katy ISD’s implementation of SB 12
interferes with her rights as a parent by “prohibit[ing]
teachers and staff from supporting and assisting” Moore in
the ways that she has requested. Id at ¶30. Johnson, as
next friend of Moore, asserts constitutional claims against
Commissioner Morath and Katy ISD, and an Equal Access
Act claim against Katy ISD. Dkts 32 at ¶14 & 33 at 53.
Rebecca Roe is a first-year high school student in
Houston ISD. Roe’s mother, Ruth Roe, submitted an
explanatory declaration. Dkt 33-4. Ruth Roe states that
Rebecca Roe “identifies as queer and lesbian.” Id at ¶3. She
maintains that the Club Provision burdens Rebecca Roe’s
ability to join or form a school club based on sexual
orientation or gender identity, while also prohibiting
participation “in activities, programs, and trainings that
reference race, color, ethnicity, gender identity, or sexual
orientation” in a manner that burdens rights to freedom of
speech, expression, and association. Id at ¶¶7, 9. Ruth Roe,
as next friend of Rebecca Roe, asserts constitutional claims
against Commissioner Morath and Houston ISD, and an
Equal Access Act claim against Houston ISD. Id at ¶1; see
Dkt 32 at ¶145.
Polly Poe is a high school teacher in Plano ISD and a
member of Texas AFT. Dkt 33-5 at ¶1. She states that she
has served as a GSA club advisor, which was disbanded due
to SB 12. Id at ¶¶2, 22–23. She also thinks it difficult as an
educator to interpret and implement the requirements of
SB 12, believing the provisions to be “so vague and broad”
that she doesn’t know how to avoid being accused of
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violating them. Id at ¶31. She also alleges that the
provisions encroach on her speech outside of school and her
official work duties. Id at ¶35. Poe brings constitutional
claims against Commissioner Morath and Plano ISD under
the First and Fourteenth Amendments. Dkt 32 at ¶238.
Plaintiffs filed this action on August 28, 2025, and an
amended complaint on September 16, 2025. Dkts 1 & 32.
The latter states that SB 12 “censors huge swaths of
constitutionally protected speech in and surrounding
Texas schools.” Dkt 32 at ¶1. It asserts six causes of action:
o Count One, at ¶¶205–32: Violation of the First
Amendment, upon assertion that all four
provisions are viewpoint discriminatory and
fail strict scrutiny.
o Count Two, at ¶¶233–68: Violation of the First
and Fourteenth Amendments, upon assertion
that all four provisions are void for vagueness.
o Count Three, at ¶¶269–84: Violation of the
First Amendment, upon assertion that all four
provisions are facially overbroad.
o Count Four, at ¶¶285–90: Violation of the
Equal Access Act, upon assertion that the Club
Provision denies equal treatment to student
organizations based on content of speech.
o Count Five, at ¶¶291–99: Violation of the First
Amendment, upon assertion that the Club
Provision infringes on freedom of association.
o Count Six, at ¶¶300–11: Violation of the First
Amendment, upon assertion that all four
provisions are a prior restraint on speech.
With their original complaint, Plaintiffs filed a motion
for preliminary injunction. See Dkt 10. The parties then
agreed to an extended briefing schedule. See Dkt 25; see
also Dkt 30 (scheduling order). Plaintiffs thereafter filed
their amended complaint along with an amended motion
for preliminary injunction. See Dkts 32 & 33. Defendants
filed their responses, along with motions to dismiss by
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Commissioner Morath and Katy ISD. See Dkts 53–59.
Plaintiffs filed a consolidated reply. See Dkt 65.
The amended complaint seeks a preliminary and
permanent injunction to prevent Defendants from
enforcing the subject provisions of SB 12, along with a
declaration finding those provisions facially unconstitu-
tional and void. Dkt 32 at ¶¶313–14. By this, they seek an
order enjoining (i) Commissioner Morath from enforcing
the challenged provisions statewide, and (ii) Houston,
Katy, and Plano ISDs from enforcing any policies or
otherwise taking any action to implement those provisions.
Dkt 63 at 41, 44. They seek in the alternative a declaration
that the provisions are unconstitutional, void, and of no
effect “as applied to Plaintiffs.” Dkt 32 at ¶315.
A preliminary injunction hearing followed on
December 18, 2025. See Dkt 80 (minute entry). No
testimony was heard. The parties instead entered into a
joint stipulation that the declarations submitted by
Plaintiffs with their amended motion for preliminary
injunction could “be entered into evidence without
objection for the limited purpose of determining the
propriety of preliminary injunctive relief.” See Dkt 60 at 1.
Defendants submitted no declarations of their own.
2. Motion to dismiss by TEA Commissioner
The motion to dismiss by Commissioner Morath
proceeds under Rule 12(b)(1) of the Federal Rules of Civil
Procedure. He asserts that jurisdiction is lacking with
respect to standing, sovereign immunity, and ripeness. See
Dkt 57 at 2. Because Plaintiffs lack standing as against
him, sovereign immunity and ripeness needn’t be reached.
Challenge under Rule 12(b)(1) extends to the standing
of the plaintiff to assert a claim. Moore v Bryant, 853 F3d
245, 248 n 2 (5th Cir 2017). A plaintiff must establish
standing because the United States Constitution vests
power in the federal courts to adjudicate only “Cases” and
“Controversies.” Art III, § 2. The burden is squarely upon
the party asserting a claim in federal court to establish
Article III standing by showing that (i) the party has
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suffered an injury in fact, (ii) the injury is fairly traceable
to the challenged conduct, and (iii) the injury is likely to be
redressed by a favorable decision. Lujan v Defenders of
Wildlife, 504 US 555, 560–61 (1992); Spokeo Inc v Robins,
578 US 330, 338 (2016), citing FW/PBS, Inc v Dallas,
493 US 215, 231 (1990).
a. Injury in fact
“In pre-enforcement free speech challenges, chilled
speech or self-censorship is an injury sufficient to confer
standing.” Turtle Island Foods, S.P.C. v Strain, 65 F4th
211, 215 (5th Cir 2023), quoting Barilla v City of Houston,
13 F4th 427, 431 (5th Cir 2021). To satisfy the injury-in-
fact requirement in this context, a plaintiff must show
(i) intention to engage in a course of conduct arguably
affected with a constitutional interest, (ii) the course of
action is arguably proscribed by statute, and (iii) a credible
threat of prosecution under the statute. Id at 215–16. In
pre-enforcement challenges “to recently enacted (or, at
least, non-moribund) statutes that facially restrict
expressive activity,” a “credible threat of prosecution” is
presumed “in the absence of compelling contrary evidence.”
Speech First, Incorporated v Fenves, 979 F3d 319, 335
(5th Cir 2020). The Fifth Circuit also characterizes the
third factor with respect to a substantial threat of future
enforcement. For example, see id at 334 (point heading).
These three injury-in-fact aspects needn’t be closely
considered in the present context, although it certainly
appears that Plaintiffs fairly demonstrate their intention
to engage in conduct of a constitutional dimension that is
arguably (and has actually been) proscribed by SB 12. This
will be considered more fully below with respect to the
enforcement authority provided to Houston, Katy, and
Plano ISDs. But as to the Commissioner, the true question
is whether any such injury is traceable to him, as
addressed next.
b. Traceability
Plaintiffs maintain that their injuries are traceable to
Commissioner Morath for the following four reasons:
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o The TEA is statutorily obligated to post
certifications of compliance submitted by
school districts as to the DEI Provision;
o School district boards are obligated to report
violations of the Social Transition Provision to
him as Commissioner;
o The TEA published legislative guidance to
school districts regarding SB 12; and
o The Commissioner “may authorize special
investigations to be conducted” as he “deter-
mines necessary” and may impose sanctions in
that regard.
See Dkts 33 at 64–65 & 63 at 20.
In so asserting, Plaintiffs rely on the decision of the
Fifth Circuit in Book People, Incorporated v Wong, 91 F4th
318 (5th Cir 2024). It there held, “Plaintiffs must allege ‘a
causal connection between the injury and the conduct
complained of.’” Id at 324, quoting Lujan, 504 US at 560.
Where “a causal relation between injury and challenged
action depends upon the decision of an independent third
party . . . standing is not precluded, but it is ordinarily
substantially more difficult to establish.” Ibid (quotation
omitted). To meet that burden, Plaintiffs must show “that
third parties will likely react in predictable ways.” Califor-
nia v Texas, 593 US 659, 675 (2021).
Decision in Book People concerned the constitutionality
of READER, a law that required schoolbook vendors selling
to Texas public schools to issue sexual-content ratings for
all library materials. The Fifth Circuit held that trace-
ability (and redressability) existed as to the Commissioner,
given the enforcement authority that the law itself vested
in him. This included his own, direct authority to (i) collect
the challenged ratings from vendors to post on the TEA’s
website, (ii) exercise discretion to review vendor ratings,
and if so, to notify vendors of the updated ratings and their
duty to conform their rating to the TEA’s, and (iii) to post
the names of the vendors that didn’t accept the TEA’s
updated ratings on its website. 91 F4th at 332–33. The
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Fifth Circuit also noted that the general authority of the
Commissioner under Texas law to enforce one challenged
provision, which prohibited school districts from
purchasing books from noncompliant vendors, through a
special investigation and sanctions against school districts.
Id at 333, citing §39.003(a), (d). In that context, the Fifth
Circuit held that the plaintiffs’ injuries were traceable to
the Commissioner’s own enforcement actions for the very
reason that, under that law, he “over[saw] the challenged
process” and his actions were “among those that would
contribute to Plaintiffs’ harm.” Ibid (cleaned up).
SB 12 is quite different from READER, with any
enforcement authority in the Commissioner under SB 12
being far more attenuated. Indeed, §1.007(b) squarely
charges Texas school districts with implementing and
enforcing SB 12, as follows: “A public elementary or
secondary school, the school’s governing body, and the
school’s employees shall implement and comply with each
policy the school is required to adopt under this code or
other law.” This accords with Texas law more generally,
whereby the final policy-making authority for an
independent school district typically rests with the school
district’s board of trustees. Jett v Dallas Independent
School District, 7 F3d 1241, 1245 (5th Cir 1993).
Even beyond that general charge, the challenged
provisions with SB 12 task school districts and not the
Commissioner. For example, with emphasis added:
o The Club Provision provides that a “school
district . . . may not authorize or sponsor a
student club based on sexual orientation or
gender.” §33.0815(b).
o The DEI Provision states that a “school district
shall adopt a policy and procedure for the
appropriate discipline, including termination,
of a district employee or contractor who
intentionally or knowingly engages in or
assigns to another person diversity, equity, and
inclusion duties.” §11.005(c).
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o The Social Transition Provision states that the
“board of trustees of a school district shall adopt
a policy prohibiting an employee of the district
from assisting a student enrolled in the district
with social transitioning.” It also provides that
parents and employees may report suspected
violations to the “board of trustees of the
district,” who then “shall investigate any
suspected violation and determine whether the
violation occurred,” and, if so, “the board shall
immediately report the violation to the
commissioner.” §11.401(b), (c).
o The LGBT Curriculum Provision states that a
“school district, open-enrollment charter
school, or district or charter school employee
may not provide or allow a third party to
provide instruction, guidance, activities, or
programming regarding sexual orientation or
gender identity to students enrolled in
prekindergarten through 12th grade.”
§28.0043(a).
The four challenged provisions stand in contrast to
other provisions within SB 12 indicating that, where the
legislature intended to place enforcement authority beyond
the hands of a particular board of trustees, it knew how to
do so. For example, Sections 2 and 5 of SB 12 specifically
state that the Commissioner “may adopt rules as necessary
to implement” sections as to facility usage reports and
trustee information posted on the TEA website. See
§7.0611(e), §11.1518(e).
Other laws passed during the same legislative session
as SB 12 also indicate that the legislature knows how to
specifically designate a statewide official for purposes of
implementation and enforcement.
Most pertinent is SB 571, which regulates the
reporting and investigation of school employee and
educator misconduct. It authorizes the Commissioner (i) to
“refer an educator who fails to report to the [State Board
for Educator Certification]” for potential sanctions, (ii) to
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21
“review records of an educational entity to ensure
compliance,” and (iii) to “adopt rules as necessary to
implement this section.” §22A.052(b), (i), (l)–(m).
Other clear specification appears in SB 17, which
regulates the acquisition of real property interests in Texas
by individuals and entities aligned with designated
countries. It directs the Attorney General to (i) establish
procedures to consider whether an investigation is
warranted, (ii) investigate any purchase or acquisition of
real estate that is suspect under SB 17, and (iii) upon any
determination that a violation has occurred, either
personally bring an in rem action against the property or
refer the matter to the appropriate local, state, or federal
law enforcement agency. Wang v Paxton, 2025 WL
2402324, *2 (SD Tex), aff’d, 161 F4th 357 (5th Cir 2025),
citing Texas Property Code §§5.255(a)–(c).
By contrast, enforcement authority under SB 12 isn’t
delegated to the Commissioner but instead remains with
the trustees of independent school districts under
§11.151(b), which specifically states that “the agency may
not substitute its judgment for the lawful exercise of those
powers and duties by the trustees.” With this in mind, the
four aspects of SB 12 argued by Plaintiffs don’t indicate
that pertinent implementation or enforcement authority
rests with Commissioner Morath.
As to certificates of compliance, it pertains solely to the
DEI Provision. It requires the TEA to post on its website
certifications otherwise created and provided by the
“superintendent of a school district or open-enrollment
charter school.” §39.008(a). This directs action solely by
school districts. Beyond this posting of a school district’s
own certification under SB 12, Plaintiffs don’t point to any
action tasked to the Commissioner as to the DEI Provision.
This stands in contrast to Book People, where the
Commissioner played an active role in the challenged
statutory scheme, collecting and reviewing the schoolbook
ratings.
As to the reporting requirement, it pertains to the Social
Transition Provision. It provides that if a parent or
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employee reports a suspected violation of a school district’s
policy created under the provision, the “board [of trustees
of the school district] shall investigate . . . and determine
whether the violation occurred.” §11.401(c). If it finds a
violation has occurred, “the board shall immediately report
the violation to the commissioner.” Ibid. But the statute is
silent as to what, if anything, follows from that report.
Nothing suggests that Commissioner Morath or the TEA
may then implement his or its own statement of policy in
accord with SB 12. It’s also notable in this context that
Plaintiffs allege that the ISDs have adopted and
implemented policies in accord with SB 12. See Dkt 32
at ¶48. This means that any injuries at present don’t trace
to action taken by the Commissioner.
As to the legislative guidance posted by the TEA, it
included guidance with respect to SB 12 generally,
including the challenged provisions. The record establishes
that it was an informational advisory summarizing over
thirty-five new education-related laws passed by the state
legislature. See Texas Education Agency, TEA Monthly
Superintendent Call 89th Legislature Updates (September
18, 2025), at 27. The guidance isn’t akin to administrative
regulation. And it neither purports to supplement, expand,
or alter SB 12, nor discloses any ability vested in
Commissioner Morath to enforce the challenged provisions.
As to investigative and sanction authority, it pertains
to the general authority of the Commissioner as head of the
TEA. §§39.003(a), (d). Such authority permits the
Commissioner to “authorize special investigations” in
specified circumstances or, more broadly, “as the
commissioner otherwise determines necessary.” See
§§39.003(a), (a)(17). Following such an investigation, the
Commissioner may take “appropriate action under
Chapter 39A,” which provides “interventions and sanctions
for school districts.” See §§39.003(d)(1), 39A.001. Such
sanctions may include, for example, issuing a “public notice
of the deficiency to the board of trustees of the district,”
arranging “a monitoring review of the district,” or
appointing “a conservator to oversee the operations of the
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district.” §§39A.002(1), (5), (7). But any such sanctions are
directed at out-of-compliance school districts alone. While
any such board or board members might be replaced, the
authority given doesn’t allow the TEA or the Commissioner
to then directly promulgate and implement the challenged
provisions in that school district. And again, the allegation
at present is that the ISDs are not out of compliance with
SB 12—meaning that any present injury is traceable to
them and not to Commissioner Morath.
The burden to establish standing is upon the plaintiff
initiating litigation. Spokeo, 578 US at 338. This includes
traceability. Plaintiffs haven’t pointed to any action that
Commissioner Morath has taken or may take that is
causing or has caused their alleged injuries. “Because the
plaintiffs have pointed to nothing that outlines a relevant
enforcement role for [Commissioner Morath], the plaintiffs’
injuries likely cannot be fairly traced to him.” Texas
Democratic Party v Abbott, 961 F3d 389, 400 (5th Cir 2020).
c. Redressability
The Supreme Court recently noted that causation and
redressability are often “flip sides of the same coin.” FDA v
Alliance for Hippocratic Medicine, 602 US 367, 380 (2024).
The Fifth Circuit observes that this is so because “the
former examines the causal connection between the
assertedly unlawful conduct and the alleged injury,
whereas the latter examines the causal connection between
the alleged injury and the judicial relief requested.”
Environment Texas Citizen Lobby, Incorporated v
ExxonMobil Corporation, 123 F4th 309, 346 n 1 (5th Cir
2024). And typically, “the maladies as to causation show
why redressability also is missing.” Inclusive Communities
Project, Inc v Department of Treasury, 946 F3d 649, 660
(5th Cir 2019).
Plaintiffs haven’t identified any enforcement authority
or action by Commissioner Morath that presently
contributes to their alleged injuries under SB 12. Given
that he played no role in causing such injuries, he isn’t part
of the remedy.
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* * *
The motion to dismiss by Commissioner Morath will be
granted as to lack of standing. In sum, Plaintiffs haven’t
established that their purported injuries are traceable to
him or redressable by enjoining him because SB 12 vests
both implementation and enforcement authority with
respect to the four challenged provisions in school districts,
not in the Commissioner of the TEA. As such, he will be
dismissed from this action.
3. Motion to dismiss by Katy ISD
Katy ISD seeks dismissal for failure to state a claim
under Rule 12(b)(6). See Dkt 53. It contends that it can’t be
sued under §1983 because the policies at issue are legally
attributable to the State of Texas, not itself.
Houston and Plano ISDs don’t join in this argument.
And it stands in notable contrast with the motion just
considered by Commissioner Morath, where he disclaimed
any responsibility for action and conduct implementing the
various provisions of SB 12.
“Under §1983, a municipality or local governmental
entity such as an independent school district may be held
liable only for acts for which it is actually responsible.” Doe
on Behalf of Doe v Dallas Independent School District,
153 F3d 211, 215 (5th Cir 1998). A school district may be
held liable under §1983 when “execution of a government’s
policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury.” Ibid.
The amended complaint alleges:
Through their final policymakers—i.e.,
their school boards—Defendants Houston
ISD, Katy ISD, and Plano ISD either
already have or are required to adopt
policies formally implementing S.B. 12 and
enforcing each of the law’s challenged
provisions.
Dkt 32 at ¶48. The record supports this statement as to
Katy ISD, as it has indisputably adopted a policy to imple-
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25
ment SB 12 and enforce each of its challenged provisions,
starting with the 2025/26 school year. See Dkt 53-1 (Katy
ISD board resolution).
Katy ISD suggests that it had no choice in this regard,
as it was simply complying with the mandatory dictates of
state law. See Dkt 53 at 13. But curiously unnoted is the
articulation in §11.151(b), as indicated above, of a very
broad statement of ISD independence and authority, with
the TEA unable to “substitute its judgment for the lawful
exercise of those powers and duties by the trustees.”
In accord, the text of SB 12 itself assumes that
independent school districts have discretion and may,
indeed, act independently in some respects. For example,
consider the certification requirements related to the DEI
Provision. See §39.008(a). The very existence of such
provision itself recognizes the potential for noncompliance
by independent school districts with state law—thus
requiring an affirmative certification of compliance. But
even more broadly, any action taken by Katy ISD when
implementing SB 12 as to each of the challenged provisions
comes with its own imprimatur that such action wholly
accords with the United States Constitution and federal
law, if for no other reason than that the Supremacy Clause
isn’t a dead letter.
Katy ISD primarily relies on decision in Familias
Unidas v Briscoe, 619 F2d 391 (5th Cir 1980). Plaintiffs
there challenged a Texas statute requiring disclosure of the
membership of organizations engaged in activities
interfering with the operation of public schools. Id at 394.
After a school boycott, the school board requested that the
county judge invoke the statute to compel disclosure of
members of the organization supporting the boycott.
Plaintiffs sued a number of individuals and entities under
§1983, including the county judge and the school district.
Id at 394–95. After holding that a First Amendment
violation occurred, the Fifth Circuit turned to the question
of who was liable for damages. As relevant here, it
determined that the school board’s request for
implementation of the statute “certainly represent[ed the]
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26
official policy of the [school district],” rendering it liable for
damages. By contrast, the county judge wasn’t found liable
because his compliance with the school board’s request
didn’t represent an official county policy, but rather, was
mere effectuation of state policy for which the county didn’t
bear responsibility. Id at 404.
Katy ISD argues under Familias Unidas that it is
somehow akin to the county judge, rather than the school
board, asserting that it exercised no discretion here and
only followed state law. This stretches the decision too far.
The Fifth Circuit acknowledged that each defendant
“simply relied on a state statutory scheme.” Id at 403. Even
so, the school district was found liable. This plainly means
that it isn’t a complete defense to point to state law alone
and argue action taken was in accord. For liability under
§1983, what matters instead is whether the constitutional
injury was caused by an official policy or custom
promulgated by the pertinent government officials with
final policymaking authority. See Collins v City of Harker
Heights, 503 US 115, 120–22 (1992). The county judge in
Familias Unidas was not liable because he didn’t act
pursuant to county policy, but instead simply complied
with the school board’s own request, as he was obligated to
do by Texas law. See 619 F2d at 404. By contrast, the school
district was liable because its board of trustees held
policymaking authority and took action that resulted in the
constitutional violation—even though such action was
taken pursuant to a state statute. Id at 403–04.
The same is true here. Katy ISD in fact acknowledges
that a Texas school board is normally considered to be the
policymaker for a school district for purposes of liability
under §1983. See Dkt 53 at 13, citing Jett, 7 F3d at 1245.
It plainly exercised such authority here when passing the
resolution alleged by Plaintiffs to violate the Constitution
and federal law. The fact that state law mandated
promulgation of such policies doesn’t shield Katy ISD from
accountability for its own actions.
Katy ISD also acknowledges that “if a school district
exercises discretion in how it implements or applies a state
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statute, then it could still be held liable under Monell for
making its own policy decisions.” Dkt 65 at 2, citing Bigford
v Taylor, 834 F2d 1213, 1222 (5th Cir 1988), in turn citing
Familias Unidas, 619 F2d at 404. It thus bears mention
that SB 12 doesn’t dictate the exact form or particulars of
policies to be individually adopted by independent school
districts. Such policies can, instead, vary—meaning in turn
that the ISDs necessarily exercised discretion when
implementing SB 12 in their own way. Katy ISD is thus
properly subject to suit under §1983 for the manner and
specifics of how it chose to implement SB 12.
Last, it is true that SB 12 clearly contains directives
that, if violated by school districts, may result in adverse
consequences for the school district or its board of trustees.
See §§11.005, 11.401, 28.0043, 33.0815; but see Dkt 87
at 52 (transcript, with Katy ISD unable to articulate what
consequence might follow from noncompliance). Even so,
like all government entities, school districts remain
obligated to comply first and foremost with federal law,
even when doing so requires disregarding contrary state
directives. See Arizona v United States, 567 US 387, 399
(2012) (citation omitted): “The Supremacy Clause provides
a clear rule that federal law ‘shall be the supreme Law of
the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any state
to the Contrary notwithstanding.’”
Ongoing litigation regarding a separate Texas law from
the same legislative sessions illustrates this point. SB 10
requires that the Ten Commandments be displayed in
school classrooms. See §1.0041. Galveston ISD decided not
to do so, upon belief that “SB 10 conflicts with the ‘supreme
Law of the land.’” See Texas v Galveston Independent
School District, 3:25-cv-00378 (SD Tex), Dkt 5 at 7 (motion
to dismiss). As a result, action is pending against it as
brought by the Attorney General of Texas. Ibid; see also
Nathan v Alamo Heights ISD, 25-50695 (5th Cir) (pending
appeal of district court order enjoining implementation of
SB 10 as unconstitutional).
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Whether Galveston ISD was right or wrong in its own
assessment isn’t the point. Rather, its actions illustrate
what a school district is obligated to do when it believes
that compliance with state law would violate federal law.
The Supremacy Clause dictates a clear answer—follow
federal law.
As considered next below, Plaintiffs have alleged
injuries arising from and traceable to policies implemented
by Katy ISD. And certainly, an order enjoining enforce-
ment of those policies would remedy such injuries. Katy
ISD thus fails to establish that it isn’t properly subject to
suit under §1983.
The motion by Katy ISD to dismiss the claims against
it will be denied. Dkt 53.
4. Standing
Houston, Katy, and Plano ISDs don’t contest standing
in any respect. See Dkts 54, 56 & 59. Even so, a federal
court has “a continuing obligation to assure itself of its own
jurisdiction, sua sponte if necessary.” Daves v Dallas
County, 22 F4th 522, 531 (5th Cir 2022) (citation omitted).
Analysis above as to Commissioner Morath and Katy
ISD resolves necessary considerations of traceability and
redressability. In short, the ISDs have each implemented
policies or are otherwise enforcing SB 12, and an injunction
proscribing further enforcement would afford cognizable
relief to Plaintiffs.
But only light attention has been given to consideration
of injury in fact as to the mix of Plaintiffs, provisions, and
school districts. To the extent that at least one Plaintiff
establishes an injury as to each challenged provision at
each of the ISDs, the case-and-controversy requirement for
issuance of injunctive relief is satisfied under Article III.
See Texas Democratic Party, 978 F3d at 178.
a. Club Provision
Rebecca Roe, Adrian Moore, and GSA Network have
standing to challenge policies enacted by Houston, Katy,
and Plano ISDs pursuant to the Club Provision as violating
the First Amendment and the Equal Access Act.
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As to Rebecca Roe and Adrian Moore, they are high
school students in Houston ISD and Katy ISD,
respectively. As to intention to engage in conduct of a
constitutional dimension, they both state that they have
previously participated in GSA-like clubs and would
continue doing so, but for prohibition by policies
implemented under the Club Provision. See Dkts 33-4
at ¶¶4, 10 (as to Roe) & 33-7 at ¶18 (as to Moore). It’s also
undisputed that such clubs have already been disbanded in
Katy and Plano ISDs, demonstrating a credible threat of
enforcement. Dkts 33-5 at ¶21 & 33-7 at ¶18. Rebecca Roe
and Adrian Moore thus have standing to challenge the
Club Provision against Houston ISD and Katy ISD,
respectively.
As to GSA Network, it is an organization suing on
behalf of both itself and its members. To sue on its own
behalf, it must meet the same standing test that applies to
individuals. See Association of Community Organizations
for Reform Now v Fowler, 178 F3d 350, 356 (5th Cir 1999).
And to sue on behalf of its members, it must establish that
“(1) its individual members would have standing to bring
the suit; (2) the association seeks to vindicate interests
germane to its purpose; and (3) neither the claim asserted
nor the relief requested requires the individual members’
participation.” NetChoice, LLC v Fitch, 134 F4th 799, 804
(5th Cir 2025).
Regarding its own injuries, GSA Network states that it
engages in constitutionally protected speech by
communicating with students, parents, and teachers in
GSA clubs, including by sharing resources and information
with registered GSAs in Texas. Dkt 33-2 at ¶14. And it
states an intention to continue doing so, but for SB 12’s
restrictions, which will result in the closure of GSAs in
schools. Ibid. As already noted, it’s undisputed that actions
and policies enacted by the ISDs pursuant to the Club
Provision proscribe GSA Network member clubs and have
caused such clubs to disband in Katy and Plano ISDs. This
demonstrates a credible threat of enforcement.
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GSA Network also alleges that it has had to “reallocate
considerable time and resources from its regular
operations in order to support students and GSA clubs in
preparing for the impacts of SB 12.” Dkt 33-2 at ¶38. Such
efforts resemble those that the Fifth Circuit found to
constitute a cognizable injury in OCA-Greater Houston v
Texas, 867 F3d 604, 612 (5th Cir 2017). The primary
mission of the organizational plaintiff there was voter
outreach and civic education. It challenged a Texas voting
law imposing a restriction on the interpretation assistance
available to voters with limited English proficiency. Id at
606. The plaintiff diverted time and resources to counteract
the effect of the law, “mitigating its real-world impact on
[its] members and the public.” Id at 612. The Fifth Circuit
found this was a cognizable injury, “perceptibly impairing”
its ability to carry out its mission. So, too, here. GSA
Network alleges that its core operations have been
perceptibly impaired by policies enacted pursuant to the
Club Provision, requiring it to divert time and resources
away from its ordinary programming to address the impact
of SB 12—namely, the closure of its member clubs. For
example, see Dkt 33-2 at ¶¶38–41 (alleging expenses of
$20,000 in mitigation efforts). Such injuries are cognizable.
Regarding standing on behalf of its members, it also
clearly exists. As resolved above, its student members, who
are similarly situated to Adrian Moore and Rebecca Roe,
have individual standing. This action is also clearly
germane to GSA Network’s purpose, as an organization
which “identifies and develops LGBTQ+ and allied youth
leaders, training and mentoring young people to advocate
for themselves and to organize for racial, economic, and
social justice, beginning in the schools.” Id at ¶2. And
nothing suggests that either the claims asserted or the
relief requested requires participation by the individual
members.
b. DEI, Social Transition, and LGBT
Curriculum Provisions
The DEI, Social Transition, and LGBT Curriculum
Provisions each differ in subject matter and substance. But
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31
they may properly be considered together because the
injuries alleged by Plaintiffs are essentially the same for
each—arising from stated concerns of vagueness and
overbreadth. Plaintiffs Polly Poe and Texas AFT, on behalf
of its members, have standing to challenge policies enacted
by Houston, Katy, and Plano ISDs pursuant to each
provision as violating the First Amendment.
As to Polly Poe, she maintains that, as a high school
teacher in Plano ISD, she finds it difficult to interpret and
implement policies enacted pursuant to SB 12, along with
the requirements of SB 12 itself. In sum, Poe states that,
because of SB 12’s alleged vagueness, she (i) doesn’t know
“how to safely do [her] job,” and (ii) fears that she may face
discipline, termination, or legal liability as a result.
Dkt 33-5 at ¶42. Her particular concerns as to each of the
three provisions are as follows:
o Regarding the DEI Provision, Poe states that
she “do[es] not know what it means to ‘develop’
or ‘implement’ a ‘policy, procedure, training,
program, or activity that references race, color,
ethnicity, gender identity, or sexual
orientation,’” finding the language “so vague
and broad that [she] do[es] not know how [she]
can avoid being accused of violating it,
especially when students choose to talk to [her]
about these topics.” See id at ¶31.
o Regarding the Social Transition Provision, Poe
says that she has “no idea what it means to
‘assist’ a student’s ‘social transitioning,’”
finding “the law’s wording is so vague and
confusing that [she] cannot tell if using a
student’s name and pronouns that align with
their gender identity is actually prohibited.” Id
at ¶32.
o Regarding the LGBT Curriculum Provision,
Poe maintains that it is “vague and confusing”
and “seems to prohibit [her] speech even
outside of school and [her] official work duties
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and gives [her] no guidance on what is actually
prohibited.” Id at ¶35.
The merits of such allegations as to vagueness and
overbreadth aren’t resolved at this stage of analysis. The
question instead is simply whether her claims at present
demonstrate the “chilling effect of the allegedly vague
[provisions], coupled with a range of potential penalties for
violating the [provisions].” Speech First, 979 F3d at 322.
This is sufficiently alleged and supported by her sworn
declaration. And it is sufficient injury to satisfy First
Amendment standing requirements. See Center for
Individual Freedom v Carmouche, 449 F3d 655, 660
(5th Cir 2006): “[A] chilling of speech because of the mere
existence of an allegedly vague or overbroad statute can be
sufficient injury to support standing.”
As to Texas AFT, it maintains that the challenged
provisions are (i) vague and violate educators’ due process
rights, and (ii) interfere with free speech rights of Texas
AFT members on matters of public concern beyond their
official duties. Dkts 33 at 31–32 & 33-6 at ¶8 (declaration
of Zeph Capo, President of Texas AFT).
Texas AFT asserts claims solely on behalf of its mem-
bers. Polly Poe, for example, is a member of Texas AFT.
Dkt 33-6 at ¶9. Associational standing is thus met. First,
Texas AFT members, like Polly Poe, have individual
standing as to policies enacted pursuant to the DEI
Provision, the Social Transition Provision, and the LGBT
Curriculum Provision for reasons just stated. Second, this
action is germane to Texas AFT’s purpose as a labor union
advocating for the “employment rights of its members” and
for “high quality public education, fairness, democracy, and
economic opportunity.” Dkt 33-6 at ¶2. Third, neither the
claims asserted nor the relief requested requires the
participation of individual members.
* * *
In sum, at least one Plaintiff has standing with respect
to each provision of SB 12 as against the policies enacted
and actions taken by each of Houston, Katy, and Plano
ISDs. As to the Club Provision, Rebecca Roe has standing
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as to Houston ISD, Adrian Moore has standing as to Katy
ISD, and GSA Network has standing at least as to Plano
ISD. As to the DEI, Social Transition, and LGBT Curric-
ulum Provisions, Polly Poe has standing as to Plano ISD,
and Texas AFT has standing as to each of the three ISDs.
Whether these and other Plaintiffs also have standing
in other respects, and to what extent, needn’t be further
considered at present.
5. Motion for preliminary injunction
The purpose of a preliminary injunction is to preserve
the relative positions of the parties until a trial on the
merits can occur. University of Texas v Camenisch, 451 US
390, 395 (1981). This is equitable relief. To obtain it, the
burden is upon the applicant to make a sufficient showing
of (i) a substantial likelihood of success on the merits, (ii) a
substantial threat of irreparable injury, (iii) the threatened
injury outweighing any harm the order might cause to the
defendant, and (iv) the injunction not disserving the public
interest. City of El Cenizo, Texas v Texas, 890 F3d 164, 176
(5th Cir 2018); see also Winter v National Resource Defense
Council, Inc, 555 US 7, 20 (2008).
But rules of procedural regularity also pertain. A
popular adage states that the obligation of a federal court
is to call “balls and strikes,” akin to an umpire considering
the contest between pitcher and batter before him on the
field. See Confirmation Hearing on the Nomination
of John G. Roberts, Jr. to be Chief Justice of the United
States Before the Senate Committee on the
Judiciary, 109th Congress, at 56 (2005). But the metaphor
extends further. For it is also the umpire’s equal duty to
call an out when the batter won’t even step into the box.
Major League Baseball, Official Baseball Rules, Rule
5.04(b)(3) (2025). And just as the umpire doesn’t take a
turn at bat when players won’t come out of the dugout, a
federal court doesn’t step into the shoes of litigants who
refuse to defend their own actions.
That’s the situation at hand. The motion by Plaintiffs
for preliminary injunction spans more than one hundred
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34
pages, along with six declarations nearing an additional
one hundred pages. See Dkt 33 (and attachments). The
three ISDs address none of it in their terse and avoidant
responses. See Dkts 54 (Katy ISD, three pages), 56 (Plano
ISD, four pages) & 59 (Houston ISD, three pages). The
motion for a preliminary injunction will thus be granted as
unopposed.
a. Party presentation and waiver
A key feature of litigation in federal court is the
principle of party presentation. See Johnson v Guerrero,
2026 WL 89388, *1 (5th Cir) (Ho, J, dissenting from denial
of en banc rehearing): “Our adversarial system of justice
relies on party presentation.” This requires that litigants
“must assert their rights in timely fashion, or else risk
forfeiting them.” Ibid.
The United States Supreme Court recently emphasized
in United States v Sineneng-Smith that “in both civil and
criminal cases, in the first instance and on appeal . . . we
rely on the parties to frame the issues for decision and
assign to courts the role of neutral arbiter of matters the
parties present.” 590 US 371, 375 (2020), quoting Greenlaw
v United States, 554 US 237, 243 (2008). This means that
federal courts “do not, or should not, sally forth each day
looking for wrongs to right,” but instead “normally decide
only questions presented by the parties.” Id at 376 (citation
omitted). As even more sharply stated by Justice Antonin
Scalia, “Our adversary system is designed around the
premise that the parties know what is best for them, and
are responsible for advancing the facts and arguments
entitling them to relief.” Castro v United States, 540 US
375, 386 (2003) (Scalia, J, concurring); see also Carducci v
Regan, 714 F2d 171, 177 (DC Cir 1983) (Scalia, J): “The
premise of our adversarial system is that appellate courts
do not sit as self-directed boards of legal inquiry and
research, but essentially as arbiters of legal questions
presented by and argued by the parties before them.”
The Fifth Circuit also observes this principle,
especially in the context of waiver. For example, see Cargill
v Garland, 57 F4th 447, 465 (5th Cir 2023) (observing that
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35
argument is waived if party fails to raise it when given
opportunity, and that courts shouldn’t consider arguments
not presented by parties themselves). In full accord is Rule
7.4 of the Local Rules of the Southern District of Texas,
which provides, “Failure to respond to a motion will be
taken as a representation of no opposition.” See also
Guarantee Company of North American USA v Housing
and Land Development Corporation, 2024 WL 3431339, *7
(SD Tex) (citation omitted): “Courts have consistently held
that inadequate briefing results in a waiver of a party’s
argument.”
In short, then, federal courts, being ones of limited
jurisdiction, must decide cases based on the arguments
presented by the parties. In the context of constitutional
litigation, it also means that the party to be enjoined must
state a position and defend itself if it wishes to avoid the
requested relief. Such procedural norms matter in federal
court litigation if judicial restraint is to have meaning in
practice.
Such restraint is all the more appropriate when
dealing with the politically charged issues present in a case
such as this. As stated by Justice Felix Frankfurter on
behalf of the Supreme Court in Joint Anti-Fascist Refugee
Committee v McGrath, “The more issues of law are
inescapably entangled in political controversies, especially
those that touch the passions of the day, the more the Court
is under duty to dispose of a controversy within the
narrowest confines that intellectual integrity permits.”
341 US 123, 149–50 (1951). And so, for example, in
Sineneng-Smith, the Supreme Court chose to avoid the
weighty First Amendment issues, complicated criminal
law concerns, and deep political implications of that case,
instead disposing of it for the Ninth Circuit’s failure to
abide by the party-presentation principle. See 590 US at
379–80.
This is no doubt important litigation. The State of
Texas has fashioned a sweeping and complex law that
engages on issues of social policy with respect to public
education that are presently the subject of heated
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36
disagreement in Texas and across the country. To say that
SB 12 is a complex law presenting complicated constitu-
tional issues is a vast understatement. It proceeds over
thirty-one sections directing detailed edits and additions in
numerous respects to the Texas Education Code, which
itself is sprawling, detailed, and, at times, arcane.
Houston, Katy, and Plano ISDs explain none of it. Nor
do they address any facts or present any legal rationale
opposing entry of the requested preliminary injunction. Yet
as determined above, SB 12 places authority almost
exclusively in the hands of public school districts, directing
them to fashion, implement, and enforce their own,
district-wide polices with respect to the four challenged
provisions. And here, the record is clear that Katy and
Plano ISDs have each taken independent action to
implement specific policies, with Houston ISD agreeing
that it is complying with SB 12, even if it hasn’t yet adopted
formal policies. See Dkts 58 at ¶48 & 59 at 2.
Instead, their responses to this point specifically
decline to either defend or disclaim the constitutionality of
their actions, while also failing to oppose the motion for
preliminary injunction:
o “[Houston ISD] has not taken any independent
position on the constitutionality or propriety of
SB 12.” Dkt 59 at 2.
o “Defendant Katy ISD takes no position on
Plaintiffs’ Amended Motion for Preliminary
Injunction,” and “intends to comply with SB 12,
but will comply with any injunctive order
issued by the Court as to SB 12.” Dkt 54 at 3.
o “[Plano ISD] takes no position on the
constitutionality or propriety of SB 12” and
“does not support or oppose Plaintiffs’ request
for a preliminary injunction.” Dkt 56 at 2.
One example—as to policies implemented with respect
to the Club Provision—crystallizes the breadth of the
waiver by the ISDs, along with their abject failure to abide
by party-presentation rules.
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On the one hand, the Supreme Court has explained,
“Under the Equal Access Act, a public secondary school
with a ‘limited open forum’ is prohibited from
discriminating against students who wish to conduct a
meeting within that forum on the basis of the ‘religious,
political, philosophical, or other content of the speech at
such meetings.’” Board of Education of Westside Commu-
nity Schools v Mergens, 496 US 226, 235 (1990), quoting
20 USC §§4071(a), (b).
On the other hand, the Club Provision states, “A school
district or open-enrollment charter school may not
authorize or sponsor a student club based on sexual
orientation or gender identity.” See §33.0815. And it’s
undisputed that each of the three ISDs has provided “a
limited public forum” by allowing access to various student
groups under the definition provided by §4071(b) of the
Equal Access Act. See Dkt 33 at ¶214 n 55.
The Christian Legal Society submitted a brief as
amicus curiae in support of Plaintiffs’ position and seeking
a holding that §33.0815(b) violates the Equal Access Act.
Dkt 79-1. It articulated reasoning at length that the Club
Provision is without question content-based discrimination
if and when school districts implement policies in accord.
But its summary was admirably succinct:
A state law that denies LGBT students
their rights under the EAA could easily be
adapted by another state to deny religious
students their rights under the EAA. Court
decisions protecting LGBT students’ EAA
rights necessarily reinforce religious stu-
dents’ EAA rights.
Id at 7.
At hearing, pointed inquiry addressed whether any
Defendant would argue in favor of the Club Provision on
the merits as to this seeming conflict with the Equal Access
Act. See Dkt 87 at 103 (transcript). No one, including
Commissioner Morath, rose in defense.
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But if resolution with respect to the Club Provision
seems straightforward, the opposite is true as to resolution
of the many issues presented with respect to the DEI,
Social Transition, and LGBT Curriculum Provisions. Yet
non-opposition by the ISDs is likewise manifest as to each
of those provisions. Indeed, this extended to waiver of any
evidentiary hearing, with the declarations submitted by
Plaintiffs thus coming in without cross-examination.
Dkt 60 (joint stipulation). Not that any reason exists to
doubt those factual averments, but as submitted, their
credibility must be assumed. And not surprisingly, those
declarations were drafted to simply, and factually, confirm
elements noted in the raft of First Amendment cases cited
by Plaintiffs in their briefing.
Principles of judicial restraint counsel against the
undersigned addressing defenses that the ISDs fail to
advance on their own behalf and of their own accord. In
sum, it is simply not the job of this Court to parse those
declarations and match up what might or might not fit with
controlling authority on behalf of the ISDs, who decline
opportunity to do so themselves. Local Rule 7.4, along with
principles of party presentation and waiver, thus foreclose
their ability to resist the preliminary injunction at this
juncture as to the Club, DEI, Social Transition, and LGBT
Curriculum Provisions.
b. Adoption of Commissioner’s argument
The only wrinkle is a defense on the merits of SB 12
advanced by Commissioner Morath with respect to the
preliminary injunction as requested against him. See
Dkt 57 at 28–43. Notably, he joined the stipulation waiving
evidentiary hearing or challenge to Plaintiffs’ declarations.
Dkt 60. In any event, his position was stated in the
alternative to dismissal. And he has now been dismissed
because Plaintiffs lack standing against him, as any
enforcement authority he possesses under SB 12 is too
attenuated to establish traceability or redressability at
present.
Houston ISD purports to adopt by reference the
Commissioner’s arguments with statement that it “joins in
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39
the arguments regarding the proposed injunction advanced
by Defendant Mike Morath,” while explaining that it does
so only “to avoid unwarranted expenditure of HISD
resources.” Dkt 59 at 2. Neither Katy nor Plano ISD join
this putative adoption. See Dkts 54 & 56. And even in so
saying, Houston ISD proceeds with specific caveat that it
in fact has “not taken any independent position on the
constitutionality or propriety of SB 12.” Ibid.
While purely legal arguments may in some contexts be
adopted by reference, fact-specific ones cannot. See Gil
Ramirez Group, LLC v Houston Independent School
District, 2017 WL 3236110, *2 (SD Tex); see also United
States v Straker, 800 F3d 570, 594 n 5 (DC Cir 2015)
(noting that “adoption by reference is permitted only to the
extent we can readily apply the proponent’s arguments to
the adopter’s case”). This means that a “textbook perfunc-
tory” adopt-by-reference statement waives the argument
where it “offer[s] no explanation as to why [such]
arguments pertained to him.” United States v Ramirez-
Rivera, 800 F3d 1, 11 n 1 (1st Cir 2015).
Here, the one-sentence statement of adoption by
Houston ISD doesn’t assert an actual belief that the
Commissioner’s arguments are correct. To the contrary, it
at least implicitly disclaims agreement with those argu-
ments by affirmatively stating it has “not taken any
independent position on the constitutionality or propriety
of SB 12.” Dkt 59 at 2. More concerning is the abject failure
to explain why (and how) arguments by the Commissioner
pertain equally to school districts, for Houston ISD in no
way explains how arguments advanced by the Commis-
sioner square with the applicability of SB 12 to school
districts.
True, some of the Commissioner’s arguments address
what could be considered the legal propriety of SB 12 at a
level of generality. See Dkt 57 at 28–36 (asserting
challenged provisions as aspects of government speech).
But the arguments are far from complete, including any
separate comprehension of implementation issues left to
the school districts themselves. For example, as noted at
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40
the outset, §1.009 prohibits “infringement of parental
rights” upon implementation of the provisions of SB 12,
including “the right to . . . make decisions concerning the
child’s education,” unless “necessary to further a
compelling state interest” and “narrowly tailored using the
least restrictive means.” It would seem that only a
pertinent school district could state an individual position
as to its own actions. Regardless, the Commissioner doesn’t
purport to consider this at all, much less from the point of
view of an independent school district taking actions
pursuant to the challenged provisions.
The purported adoption-by-reference by Houston ISD
is thus insufficient to be treated as opposition to the
preliminary injunction requested against it.
* * *
The motion for preliminary injunction will be granted
as unopposed. Dkt 33.
6. Scope of preliminary injunction
Plaintiffs seek statewide relief, including as to the
requested preliminary injunction, to essentially enjoin the
four challenged provisions entirely—rather than solely as
implemented by independent school districts. See Dkt 63
at 41. That Plaintiffs would naturally prefer to have single-
shot litigation resolve SB 12 once and for all isn’t
surprising. But such relief would require identification of a
Defendant through whom SB 12 can actually be enjoined
statewide. This they have thus far failed to do.
Decision by the Supreme Court in Whole Woman’s
Health v Jackson addressed a prior Texas law, SB 8, and
the apparent lack of enforcement authority vested in the
Texas Attorney General due to its decentralized nature.
See 595 US 30 (2021). It there observed:
Even if we could overcome this problem,
doing so would only expose another.
Supposing the attorney general did have
some enforcement authority under S. B. 8,
the petitioners have identified nothing that
might allow a federal court to parlay that
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41
authority, or any defendant’s enforcement
authority, into an injunction against any
and all unnamed private persons who
might seek to bring their own S. B. 8 suits.
The equitable powers of federal courts are
limited by historical practice. A court of
equity is as much so limited as a court of
law. Consistent with historical practice, a
federal court exercising its equitable
authority may enjoin named defendants
from taking specified unlawful actions. But
under traditional equitable principles, no
court may lawfully enjoin the world at
large, or purport to enjoin challenged laws
themselves.
595 US at 44 (cleaned up, citations omitted).
SB 12 presents a similarly decentralized structure and
places enforcement authority in hands other than the
Commissioner. And so here, with him dismissed, order may
be directed only toward enjoining the policies and actions
that the three ISDs have themselves implemented and
taken with respect to the four challenged provisions of SB
12. Dkt 33 at 125.
The reality is that resolution of challenges to SB 12
must instead depend upon different actions brought
against different school districts before different federal
judges. This accords with recent decision by the Supreme
Court in Trump v CASA, Inc, where it noted that it had
historically “rebuffed requests for relief that extended
beyond the parties,” meaning in turn that injunctive relief
may not “directly interfere with enforcement of contested
statutes or ordinances except with respect to the particular
[ ] plaintiffs.” 606 US 831, 843–44 (2025). And it is a
particularly appropriate result here, where SB 12 directs
individual school districts to fashion and implement their
own policies in compliance with the provisions of SB 12.
Separate order will enter to specify the terms and scope
of preliminary injunction as against Houston, Katy, and
Plano ISDs. In sum, during the pendency of this litigation,
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42
they will be enjoined from implementing policies or
otherwise taking action to enforce each challenged
provision of SB 12. But preliminary injunction will extend
no more broadly than that.
The scope of injunctive relief as to all ISDs will also
accord with the joint stipulation between Plaintiffs and
Houston ISD. See Dkt 84. As such, the preliminary
injunction will not compel campus access or disrupt any
preexisting policies governing the procedures by which any
group may seek access to school facilities.
Last in this respect, no bond will be required. This
action involves constitutional issues, and nothing suggests
that the ISDs might suffer monetary harm from entry of
the requested preliminary injunction. See FRCP 65(c), see
also Dkt 33 at 124.
7. Procedural orders
As just addressed at length, Houston, Katy, and Plano
ISDs have to this point sought the path of least resistance,
attempting to thread a vanishingly small needle with
several rather discordant positions. These are that (i) they
don’t have discretion to decide whether or how to follow the
mandates of SB 12, (ii) and so they each will abide by and
implement the challenged provisions, (iii) even as they
decline to take any position to defend SB 12 or their actions
on the merits, (iv) although they’d be happy to comply with
any federal court order of preliminary injunction. See
Dkts 54 at 1–2, 56 at 2 & 59 at 2. For reasons noted above,
that’s insufficient, particularly with respect to constitu-
tional litigation.
Plano ISD in fact goes even further. It suggests that
requiring it even to state a position puts it to a “Hobson’s
choice of either (1) implementing a state law at the risk of
running afoul of First Amendment and Equal Access Act as
alleged by Plaintiffs; or (2) refusing to implement SB 12
and facing discipline from the State.” Dkt 56 at 4. Like it
or not, however, declining to take a position on such basis
isn’t an available option—or at least, failing to do so comes
with procedural consequences. The obligation of public
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43
officials in the first instance is instead to proceed in accord
with their own assessment of constitutionality. It may be
unpleasant for the members of the various boards of
trustees to face discipline or removal if they refuse to
implement any of SB 12’s provisions upon their own
discernment of constitutional infirmity. But that is simply
a consequence of the Supremacy Clause—coupled with
their prior acceptance of duties as trustees.
On principle, then, the three ISDs should either defend
SB 12 and their actions under it, or else state explicitly that
they will not enforce it. But in practice, it appears that
Texas statutory law may provide an alternative. Left
unaddressed in the briefing is the potential for school
districts to “request the assistance of the attorney general.”
§11.151(e). This itself appears to pair with statutory
procedures requiring notice to the Office of the Texas
Attorney General of challenges to the constitutionality of
state law, which triggers the potential for intervention. See
Texas Government Code §402.010.
Given their failure to articulate a position on the merits
to this point, Houston, Katy, and Plano ISDs will be
ordered to file a statement of position within fourteen days
as to whether they (i) intend to defend SB 12 and their
actions enforcing it, (ii) will seek representation from the
Office of the Attorney General, per §11.151(e) of the Texas
Education Code, or (iii) intend some other course alto-
gether. Their consultation with the Attorney General must
also confirm that this case involves a challenge to the
constitutionality of a state law, in accord with §402.010 of
the Texas Government Code.
8. Conclusion
The motion to dismiss by Defendant Commissioner
Mike Morath is GRANTED for lack of standing Dkt 57. He is
DISMISSED WITHOUT PREJUDICE from this action.
The motion to dismiss by Defendant Katy ISD is
DENIED. Dkt 53.
The motion by Plaintiffs for preliminary injunction is
GRANTED IN PART as unopposed. Dkt 33.
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A separate order will enter to set out the specific terms
of the preliminary injunction. In sum, during the pendency
of this litigation, Houston, Katy, and Plano ISDs will be
enjoined from implementing policies or otherwise taking
action to enforce each of the four challenged provisions of
Senate Bill 12. For the avoidance of doubt, because claims
against Commissioner Morath have been dismissed, no
statewide relief will be ordered at this juncture.

Houston, Katy, and Plano ISDs are further ORDERED to
file a statement of position within fourteen days as to
whether they intend to defend Senate Bill 12; whether they
will seek representation from the Office of the Attorney
General; or whether they intend some other course
altogether.

SO ORDERED.

Signed on February 20, 2026, at Houston, Texas

CUZ

Honorable Charles Heke
United States District Judge

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