Federal judge rules Abbott's ban on mask mandates in schools violates rights of students with disabilities

AP Photo/Mary Altaffer, File

A federal judge ruled on Wednesday that local officials are free to issue their own rules as they pertain to face masks in schools. Governor Abbott’s ban on mask mandates in schools is in violation of the Americans with Disabilities Act, according to U.S. District Court Judge Lee Yeakel.

Judge Yeakel of the U.S. District Court for the Western District of Texas also ruled that Texas Attorney General Ken Paxton cannot impose fines, withhold educational funds, or bring legal action to enforce Abbott’s executive order banning mask mandates in school districts. Texas’ 5 million school children and more than 1,000 districts have been caught up in the politicization of COVID mandates and protections for months. The ruling, expected to be appealed to the Fifth Circuit, will likely have a national impact as many other states are in similar legal battles.

“The spread of COVID-19 poses an even greater risk for children with special health needs,” Yeakel said. “Children with certain underlying conditions who contract COVID-19 are more likely to experience severe acute biological effects and to require admission to a hospital and the hospital’s intensive-care unit.”

Yeakel said that the ban on mask mandates prevents children with disabilities from public school programs, services, and activities. In late August, Disability Rights Texas, an advocacy group, filed a federal lawsuit on behalf of several Texan families. The lawsuit was filed against Abbott, Paxton, and Texas Education Agency (TEA) Commissioner Mike Morath. The lawsuit said that the executive order and TEA’s endorsement of it deny disabled children access to public education because they are at high risk of illness and possible death from COVID.

Kym Davis Rogers, litigation attorney with Disability Rights Texas, said in a statement that the court found that Texas is not above federal law and state officials cannot prevent school districts from providing accommodations to students who are especially vulnerable to the risks of COVID-19.

“No student should be forced to make the choice of forfeiting their education or risking their health, and now they won’t have to,” Rogers said.

The results of a poll taken in October by the left-leaning UT/Texas Tribune show 57% of voters support mask requirements in indoor public spaces. 58% support mask requirements for students and staff in public schools. 40% oppose the requirements in indoor public places while 39% oppose mask requirements in schools.

An attorney for the state argued that the Texas state officials weren’t enforcing the executive order but Disability Rights Texas provided “threatening” letters sent to school districts.

But Disability Rights Texas attorneys said the three were enforcing the order and provided the court with a letter that the TEA sent to the attorney general’s office. In it, the education agency listed school districts that appeared to be operating in violation of the governor’s order. The plaintiffs also noted how Paxton sued several school districts over requiring masks and sent “threatening” letters to districts telling them that they were violating the order.

The U.S. Department of Education Office for Civil Rights is also investigating the TEA for possibly “preventing school districts in the state from considering or meeting the needs of students with disabilities” with Abbott’s executive order. Similar investigations are being conducted in Iowa, Oklahoma, South Carolina, Tennesse, and Utah.

The truth is that while Abbott banned government mask mandates earlier this year, some large school districts ignored the order and made decisions to require masks in schools. They justify it by pointing to the CDC’s recommendation that students and staff mask up in schools. Abbott never banned face masks, he ordered that there would be no mandates for them. This is entirely in line with how he has conducted mitigation for the coronavirus pandemic from the start. He pushed back on mandates as they came down from Washington, D.C., and allowed Texans to make their own decisions.

Face masks, especially on young children, have been a hot-button issue throughout the pandemic. Anti-maskers say that cloth masks and disposable masks don’t prevent the spread of the virus while others argue that it protects the wearer from breathing in the virus droplets. It is not common to see people using medical-grade face masks which are the most effective. There is also the argument that children are the least vulnerable to COVID and wearing a face mask all day in school isn’t anything but a feel-good gesture. The blame can be put on the CDC and others who have provided way too much mixed messaging on the coronavirus from the start. Judge Yeakel points to the number of COVID cases reported by schools now that in-person learning is back.

Yeakel cited the number of COVID-19 cases among children, which represented nearly 17% of total cases in the United States as of early November. Texas public schools have reported nearly 212,000 student cases of coronavirus 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.

He also wrote that it is Congress’ intent that school district leaders have the ultimate say over how federal coronavirus relief funding is used in ensuring “the safe return to in-person instruction of students within that district.”

Since the start of the school year, several of the districts that initially implemented mask mandates have repealed them or altered them as the number of COVID-19 cases have decreased in the surrounding community and across the state. Others have done so under pressure from Paxton’s office.

As I said, this won’t be the final ruling in this battle. The ruling will likely be appealed to the Fifth Circuit, a conservative-leaning court. In the meantime, some school districts are leaving mask mandates in place until most students are vaccinated now that the COVID vaccines are available for children above the age of five.