Gov. Abbott’s executive order prohibiting school districts from adopting mask mandates violates federal law, ruled a federal judge Wednesday evening. The court further enjoined Attorney General Ken Paxton from enforcing the order through fines for or seeking legal action against school districts.
The federal lawsuit was first brought by advocacy group Disabilities Rights Texas in early August on behalf of eight Texas public school students with disabilities and their parents. They alleged Gov. Abbott’s executive order, GA-38, violated their rights under federal disability laws such as the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973.
Judge Lee Yeakel wrote Abbott’s order conflicted with federal law because it “excludes disabled children from participating in and denies them the benefits of public schools’ programs, services, and activities to which they are entitled”.
Not only did GA-38 violate the plaintiffs’ rights under the ADA and Section 504 wrote Yeakel, but also that it was “preempted by the ADA, Section 504, and the ARP [American Rescue Plan] Act.”
The claims regarding the ARP references one of the requirement for states receiving the federal relief, over $12 billion for school districts in Texas, was to develop and make public a “plan for the safe return to in-person instruction and continuity of services.” The requirement further stated that each school districts’ plans for returning safely describe “the extent to which it has adopted policies, and a description of any such policies, on each of the following safety recommendations established by the CDC . . . ,” including “universal and correct wearing of masks.” Abbott’s order hindered such plans.
Yeakel cited the high number of COVID-19 cases among Texas school children. According to TEA and DSHS, there have been nearly 212,000 student cases of COVID-19 since the beginning of this school year.
“The spread of COVID-19 poses an even greater risk for children with special health needs,” Yeakel wrote.
This court’s permanent injunction is the latest development in months of litigation in state and federal courts between school districts, parents, and Gov. Abbott’s administration over his executive order since August during the height of the Delta surge of COVID-19 and the start of the school year.
In September, Attorney General Paxton told school districts he would take them to court if they did not rescind their public health requirements of mask wearing regardless of local circumstances of COVID-19.
Paxton has been so aggressive in his lawsuits, he has brought them against school districts that rescinded their mask mandates and one that did not even have any and has went to court without giving notice to the defendant school districts of the injunction hearing.
Even the United States Department of Education intervened in late September launching an investigation into whether the state was discriminating against students with disabilities following Texas Education Agency’s (TEA) updated public health guidance.
TEA changed their prior neutral stance claiming pending litigation to an explicit prohibition of mask mandates by school districts due to Abbott’s executive order. There has been no update in the federal investigation they launched then, but the Department indicated in a statement of interest in this federal lawsuit that the order interferes with local school districts’ ability to satisfy their obligations under Title II of the ADA and that Texas should be obligated to make “reasonable modifications” to its ban on school mask mandates to avoid unlawful discrimination against students with disabilities.
This order allows all Texas school districts to adopt mask wearing requirements.
Attorney General Ken Paxton tweeted he disagreed with the ruling and is exploring all legal options. This would include appealing the permanent injunction.
