More mask mandate mania: Judge, Biden side with school districts over governors

AP Photo/Denis Poroy

A county district court judge granted Harris County’s request for a temporary restraining order to stop the state from enforcing the governor’s ban on mask mandates on Friday. This came after Harris County Judge Lina Hidalgo announced a mask mandate Thursday for all county schools and childcare facilities. Harris County went to court with school districts that also believe in using face mask mandates to mitigate the coronavirus in classrooms. This is a very timely subject because school begins in a matter of days in many counties, including Harris County.

The largest independent school district in Texas, Houston ISD, voted to mandate the use of face masks when school begins. County Judge Hidalgo (not a judicial judge, a county CEO) issued her order on Thursday, the day HISD took a vote. Other large school districts in the state also mandated face masks. Dallas ISD also issued a mask mandate, as did San Antonio, for example. Other school districts in Texas, including in the Houston area, are keeping masks optional, at least for now. Recent spikes in COVID-19 cases due to the Delta variant have caused alarm as parents prepare to send their children back to in-person classroom learning. As with everything else in our lives today, the issue provokes strong opinions. While teachers and their union leaders are demanding mask mandates, many parents oppose them. There has been no evidence presented by CDC or any other agency that masks prevent COVID in children yet mask proponents want children as young as two years of age to mask up. Ironically, it is proven that the COVID-19 vaccines do work against the virus, certainly in preventing serious hospitalizations and deaths, yet there are no vaccination mandates being issued for teachers. Only very recently has one major teacher union come out kinda sorta in favor of vaccination mandates for teachers. Randi Weingarten was opposed to that mandate before she was for it, or something.

Judge Jan Soifer of the 345th Civil District Court in Travis County (Austin) provided legal cover for Hidalgo’s order.

“While this decision is temporary, it’s a victory for residents in Harris County who are concerned about this public health crisis,” County Attorney Christian Menefee said in a statement. “We need every tool at our disposal to stop the spread of COVID-19, including masks and other measures that are proven to slow the spread.”

As noted, it’s another temporary band-aid solution to an ongoing dispute between Governor Abbott and county officials. Most school districts in the state are taking a wait-and-see approach, waiting to see what the final legal decision is on face mask mandates.

If Hidalgo has her way, unvaccinated people will just stay home and self-isolate. She’s into flying her authoritarian freak flag at every opportunity. She put Harris County back into the highest threat level due to the spike in cases and reports of hospitals filling up again.

Hidalgo on Aug. 5 moved the county to its highest pandemic threat level, which urges unvaccinated residents to stay home and avoid unnecessary contact with others. She said masks are particularly important in schools because children under 12 cannot yet be vaccinated, which health officials agree is the best defense against COVID-19.

Harris County’s order also requires schools to notify parents when a student comes into contact with someone who tests positive for the virus; the Texas Education Agency advises but does not mandate this.

“At this point, public health interventions like masking, contact tracing and notifications in schools remain (children’s) only protection against the virus,” Hidalgo wrote in a letter to superintendents Tuesday.

So, we’ll wait for the next legal round in court, I guess until the matter is resolved, one way or the other. It is on its way to being settled by the Texas Supreme Court.

Abbott and Attorney General Ken Paxton, who was also named in the suit, are almost certain to appeal. The pair pledged in a joint statement Wednesday to sue any “school district, public university or local government official” who violates the governor’s executive order.

Randall Erben, a professor of the University of Texas School of Law, said Abbott has broad powers under the Disaster Act. This situation is unique, said Southern Methodist University law professor Nathan Cortez, because the governor is attempting to limit, rather than enhance, the government’s response to a disaster.

The Texas Supreme Court likely will settle the issue statewide, the legal scholars said.

Joe Biden and Education Secretary Miguel Cardona took the opportunity Friday to blast both Governor Abbott and Governor DeSantis. In letters sent to both governors, Cardona stated that COVID-19 relief funds for schools can be used “to fill any financial gaps caused by penalties imposed on local school districts by state leaders.”

“The Department stands with these dedicated educators who are working to safely reopen schools and maintain safe in-person instruction,” Cardona wrote.

Cardona wrote that “any threat by Florida to withhold salaries from superintendents and school board members who are working to protect students and educators (or to levy other financial penalties) can be addressed using (federal virus relief) funds at the sole and complete discretion of Florida school districts.”

In addition to prohibiting mask mandates, Abbott’s administration has said that schools do not need to conduct contact tracing for potential COVID-19 infections. Cardona’s letter makes clear that federal funds can also be used for contact tracing.

This is the letter to Abbott and Commissioner Morath:

As the new school year begins in school districts across Texas, it is our shared priority that students return to in-person instruction safely. The safe return to in-person instruction requires that school districts be able to protect the health and safety of students and educators, and that families have confidence that their schools are doing everything possible to keep students healthy. Texas’s recent actions to block school districts from voluntarily adopting science-based strategies for preventing the spread of COVID-19 that are aligned with the guidance from the Centers for Disease Control and Prevention (CDC) puts these goals at risk and may infringe upon a school district’s authority to adopt policies to protect students and educators as they develop their safe return to in-person instruction plans required by Federal law.

We are aware that Texas has issued an Executive Order prohibiting local educational agencies (LEAs), among other local government entities, from adopting requirements for the universal wearing of masks. Further, guidance released on August 5, 2021, by the Texas Education Agency (TEA) states that “school systems are not required to conduct COVID-19 contact tracing.”

These State level actions against science-based strategies for preventing the spread of COVID-19 appear to restrict the development of local health and safety policies and are at odds with the school district planning process embodied in the U.S. Department of Education’s (Department’s) interim final requirements. As you know, the American Rescue Plan Act of 2021 (ARP Act) requires each LEA that receives Elementary and Secondary School Emergency Relief (ARP ESSER) funds to adopt a plan for the safe return to in-person instruction and continuity of services. (See section 2001(i).)The Department’s interim final requirements clarify that such plan “must describe…how [the LEA] will maintain the health and safety of students, educators, and other staff and 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…” The safety recommendations include “universal and correct wearing of masks” and “contact tracing in combination with isolation and quarantine, in collaboration with the [appropriate] health departments.”

Biden admitted this week that he likely can’t override the governors’ orders but laws don’t mean much to the Biden administration. In their zeal to control everything, past Supreme Court decisions and legal decisions fall by the wayside, like the moratorium on evictions.

Governors Abbott and DeSantis are promoting the use of personal responsibility versus government mandates. We have to learn to live with the coronavirus, as we do with other viruses. Vaccines are available. Everyone knows what to do to mitigate the spread of the virus. It’s time to get on with our lives as best as we can. Republicans believe that government closest to the people is best. In this case, there is no scientific proof that has been presented that face masks prevent COVID-19 in children, even those under the age of 12 who are not yet eligible to be vaccinated. Children are not superspreaders. Follow the science and use common sense.