Gov. Greg Abbott’s ban on mask mandates in Texas schools faces lawsuit, defiance by big-city districts

Texas Politics

Texas Governor Greg Abbott (Photo by Lynda M. Gonzalez-Pool/Getty Images)

AUSTIN (Texas Tribune/KXAN) — This week, several Texas schools passed policies to require students and staff to wear masks on campus in the new school year — in direct defiance of a May executive order by Gov. Greg Abbott banning mask mandates in public schools.

Now, even more resistance to Abbott’s order is growing.

Dallas Independent School District announced Monday morning it will require students and teachers to wear masks on campus. Then, Austin ISD’s superintendent announced late Monday that masks would be required for all beginning Tuesday. Houston ISD Superintendent Millard House II has said he wants to issue a mandate, too, and a school board meeting for Texas’ biggest district to discuss the idea is scheduled for this week.

“Governor Abbott’s order does not limit the district’s rights as an employer and educational institution to establish reasonable and necessary safety rules for its staff and students,” Dallas ISD said in a statement. “Dallas ISD remains committed to the safety of our students and staff.”

On Tuesday, officials in Bexar County sued Abbott, seeking the power to impose a local mask mandate in their schools.

Meanwhile, the Southern Center for Child Advocacy, a nonprofit education group, filed a lawsuit Sunday night in Travis County against Abbott and his executive order prohibiting school districts, governmental bodies or any public or private entity that is receiving or will receive public funds from requiring masks.

In the absence of a statewide mask mandate, the group hopes to give the power to enforce mask wearing back to local school districts, said Hank Bostwick, volunteer center coordinator and lawyer.

Abbott’s order, issued in the spring when coronavirus cases were on the decline, limits school officials’ ability to respond to the pandemic, which at the moment is in the middle of what some health experts are calling a third wave. With the more-infectious delta variant in play, cases are on the rise — and experts say the variant’s proving to be more virulent with children than previous strains.

Many Texas parents are concerned about the new school year, as more and more children are admitted to hospitals with the virus and most children are still not eligible for vaccination.

Abbott stated earlier this month he was past the point of issuing government mandates to slow the spread of COVID-19, even as the delta variant has cases and hospitalizations up across the nation. Instead, he said it is time for personal responsibility, which he emphasized when he took away the statewide mask mandate earlier this year.

“Going forward, in Texas, there will not be any government-imposed shutdowns or mask mandates,” he said. “Everyone already knows what to do.”

Abbott’s office emphasized personal responsibility again in a statement to KXAN Tuesday afternoon:

“We are all working to protect Texas children and those most vulnerable among us, but violating the Governor’s executive orders—and violating parental rights—is not the way to do it. Governor Abbott has been clear that the time for mask mandates is over; now is the time for personal responsibility. Parents and guardians have the right to decide whether their child will wear a mask or not, just as with any other decision in their child’s life.”

Texas Governor Greg Abbott

The statement goes on to say Abbott has fought hard for the rights and freedoms of all Texans alongside the Office of the Attorney General. Abbott’s office is continuing to encourage everyone who is eligible to get vaccinated.

Meanwhile, Texas State Teachers Association President Ovidia Molina said in a statement she urges other school districts to join Dallas ISD in requiring masks and also called for Abbott to rescind his executive order.

“We agree with Dallas Superintendent Michael Hinojosa that it is within a school district’s discretion to take steps to ensure the health and safety of its students and employees,” Molina said.

The lawsuit claims Abbott is overreaching his authority and his emergency powers should be used to take proactive steps and “not to advance an anti-mask political agenda that has no discernible basis in the data regarding the COVID-19 contagion rate.”

“This is purely political gamesmanship, and has nothing to do with the health and safety of Texas children or their teachers,” Bostwick said.

The lawsuit highlights people of color are still lagging behind in vaccination rates and getting these families back in schools without proper protection makes them vulnerable to an increased rate of infection.

“The threat to the health and safety of Texas public school students and teachers is imminent and real,” the lawsuit states.

The group also claims the governor is in violation of Texas education code, because children with disabilities “are entitled to learn and interact with their non-disabled or typical peers in a safe and healthy educational environment.” The order not allowing masks means some of these students may be unable to attend school in person if masking is not required, the lawsuit claims.

Under Abbott’s order, entities that defy the governor are subject to a $1,000 fine, but it is unclear how this would apply to school districts. A spokesperson for the governor did not immediately respond to a request for comment on the matter.

The ongoing concern over safely returning to classrooms spurred over 100 Austin ISD families to form Safe Schools for All to advocate for local control. Member Mike Siegel, an Austin ISD parent of two kids under 12, said before the district’s new mask mandate was announced districts across the state need to form a coalition and fight back together to combat a potential legal battle or fines.

“… And if and when the school board takes this action on our behalf, we will be there to support them — whether that means politically, legally, or financially,” Siegel said.

In a statement Tuesday evening, Austin Mayor Steve Adler said:

Schools make rules. Children learn discipline, cooperation, to stand in lines, sit quietly, to be part of a student body. As many teachers will tell you, there’s no “I” in “team,” @GovAbbott. @AustinISD is making and enforcing a rule. Students (and parents) are used to that.”

Austin Mayor Steve Adler

In Fort Worth, school officials announced Monday they would not require masks, but would strongly recommend them.

Concern over COVID-19 has flared over the past months as the delta variant has taken hold and last Thursday, the Texas Education Agency announced guidance that drew pushback from many parents and advocacy groups.

The TEA said Texas school districts will not be required to conduct contact tracing this year if a student contracts COVID-19. But the agency did allow for remote learning for up to 20 days for students who are sick with COVID-19 or have been exposed to it. If more time is needed, schools can apply for waivers.

Longer-term remote learning has largely been defunded after it was offered at the start of the pandemic, and efforts to allocate funding for it have so far failed in the Legislature this year.

Portions of this article originally appeared in The Texas Tribune at www.texastribune.org. The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans – and engages with them – about public policy, politics, government and statewide issues.

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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