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5 things to know about the fight over masks in Texas schools

The legal uncertainty surrounding Gov. Abbott’s order, local and federal lawsuits and a federal investigation has created confusion for families on how long their school’s mask policies will stay in place.

Legal battles over requiring masks in schools have districts going back and forth over their policies.

Many Texas administrators feel compelled to follow the advice of the medical community, which recommends face coverings as one in a series of preventative layers. Both the Centers For Disease Control and Prevention and the American Academy of Pediatrics recommend wearing masks for indoor activities for ages 2 and up.

But state leaders are adamant that mandates aren’t necessary, arguing that it’s a parent’s decision on whether they send their child to school in a mask.

Here’s what to know about the ongoing mask fight:

Abbott’s executive order

On May 18, Gov. Greg Abbott issued an executive order that stated no school district “may require any person to wear a face covering or to mandate that another person wear a face covering.”

A later executive order added language banning any governmental entity from compelling someone to receive the COVID-19 vaccine.

In multiple TV appearances, Abbott explained his stance, arguing that it was now a matter of personal responsibility.

“The people who are most responsible for the health of their children are the parents, and the parents have the right to make ... the choice about whether or not their child will be wearing a mask to school,” Abbott told Fox News in July.

Counties, cities, districts push back

Prior to the start of the 2021-22 school year, several counties, large cities and school districts across the state began to push back on Abbott’s orders.

Dallas County Commissioner Clay Jenkins ordered a mask mandate, stating that he had the authority to do so as a mitigation effort in a local emergency. Dallas ISD Superintendent Michael Hinojosa similarly defied the order, saying it was his responsibility to ensure the health and safety of his staff and students.

Through his attorneys, Abbott has countered that he holds broad authority in emergency situations granted to him by the Texas Disaster Act, and that mask mandates fall under that authority.

Many of these challenges have been pinging back and forth in Texas’ legal system, between lower courts and the state’s highest court, the Texas Supreme Court. The state’s top court has ruled against some local injunctions, but has yet to make a definitive ruling on who holds the legal authority.

“The status quo, for many months, has been gubernatorial oversight of such decisions at both the state and local levels,” the court said in an Aug. 27 order. “That status quo should remain in place while the court of appeals, and potentially this Court, examine the parties’ … arguments to determine whether plaintiffs have demonstrated a probable right to the relief sought.”

According to reporting from the Texas Tribune, Abbott and Texas Attorney General Ken Paxton also have argued in court filings that neither has the authority to actually enforce the governor’s order. Instead, that power lies with local district attorneys, who are unlikely to issue $1,000 fines that come with violations, given the political dynamics at play.

AG’s threats

Paxton has put on an aggressive front against the dozens of school districts that implemented their own mask mandates in defiance of Abbott’s order, posting several times on social media that he planned to sue each of them.

In recent weeks, Paxton has lived up to part of that promise, filing lawsuits against a handful of districts, including Richardson, three Waco-area districts and Paris, which had amended its dress code to include masks.

Sherman trustees voted to drop its mask requirements, starting Sept. 21, after Paxton sued the district.

The attorney general also secured a temporary restraining order in Lamar County against Paris, forcing the district to back down from its revised dress code policy.

“This temporary restraining order is just the first step in restoring order to our great state and ending this disruption from rogue local officials,” Paxton said in a statement.

Dozens of other districts have been sent letters from Paxton, warning them of future litigation if their policies aren’t changed. KIPP Charter schools, which operates seven campuses in southern Dallas, dropped their mask requirements on Sept. 22, after receiving such a letter.

“We are under tight scrutiny from the state and are more at risk of losing state funding that would not allow us to operate,” said Sehba Ali, KIPP Texas Public Schools CEO. “In other words, by defying the mask mandate, we could run the risk of being shut down, unlike a traditional district.”

Ongoing federal lawsuit

In mid-August, a lawsuit was filed in federal court by the advocacy group Disability Rights Texas against Abbott and Texas Education Commissioner Mike Morath.

The lawsuit argues that the governor’s efforts to stop schools from enforcing mask mandates violate federal anti-discrimination laws that protect those with disabilities, since those laws prohibit the exclusion of students with disabilities from public education.

The fourteen plaintiffs from across the state, including students in Richardson and Keller, have underlying medical conditions that put those children at higher risk if they contract COVID-19, attorneys for Disability Rights Texas said.

“The ban on mask mandates is putting children with disabilities at significant risk and is discriminatory,” attorney Kym Rogers said. “We will do everything in our power to keep the Governor and TEA from pushing these children out of schools or endangering their lives.”

The case is still in pre-trial motions, but on Sept. 15, U.S. District judge Lee Yeakel denied a motion for a temporary restraining order.

Feds launch investigation

Just this week, the U.S. Department of Education’s Office for Civil Rights opened an investigation on Texas’ mask policies, along the same lines as Disability Rights Texas’ lawsuit.

Investigators will look at whether the Texas Education Agency “may be preventing school districts in the state from considering or meeting the needs of students with disabilities as a result of Texas’ policy that prohibits school districts and individual schools from requiring the use of face masks to reduce the risk to students and others of contracting COVID-19,” according to a letter sent Tuesday by Suzanne B. Goldberg, the U.S. Department of Education’s acting assistant secretary for civil rights.

This comes after President Joe Biden instructed his education secretary, Miguel Cardona, to use his oversight powers against governors who are “trying to block and intimidate local school officials” from safely reopening schools.

Billions of federal dollars aimed for schools might be in jeopardy as a result. The Biden Administration poured billions of additional dollars to Texas schools, with the expectation that those receiving additional funding adopt safe return-to-school plans for every student.

The DMN Education Lab deepens the coverage and conversation about urgent education issues critical to the future of North Texas.

The DMN Education Lab is a community-funded journalism initiative, with support from The Beck Group, Bobby and Lottye Lyle, Communities Foundation of Texas, The Dallas Foundation, Dallas Regional Chamber, Deedie Rose, The Meadows Foundation, Solutions Journalism Network, Southern Methodist University and Todd A. Williams Family Foundation. The Dallas Morning News retains full editorial control of the Education Lab’s journalism.

Corbett Smith. Education writer (and part-time HS sportswriter) for The Dallas Morning News

corbettsmith@dallasnews.com /DMNEducation @corbettsmithDMN
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