Federal judge strikes down Texas governor's ban on masks at schools

A federal judge on Wednesday night struck down Texas Republican Gov. Greg Abbott’s executive order prohibiting school districts from imposing mask mandates in the classroom, ruling that the policy violated the rights of students with disabilities guaranteed by the Americans with Disabilities Act (ADA) and other federal laws. The outcome could have major implications for ongoing legal battles about mask bans in other states.

“The evidence presented by Plaintiffs establishes that Plaintiffs are being denied the benefits of in-person learning on an equal basis as their peers without disabilities,” U.S. District Judge Lee Yeakel wrote in a 29-page ruling. “The court concludes that GA-38 violates the ADA and Section 504.”

Yeakel, appointed to the federal bench in 2003 by President George W. Bush, went on to enjoin Texas Attorney General Ken Paxton from enforcing Abbott’s order, allowing local school leaders to once again require that their students wear masks. Paxton said he “strongly disagrees” with the opinion, adding that he is exploring “all legal avenues” to challenge it.

The ruling comes after a monthslong battle over the legality of Abbott’s July executive order GA-38, which held that, “No governmental entity… may require any person to wear a face covering.” Failure to comply with the order would subject officials to a fine of up to $1,000.

In August, the advocacy organization Disability Rights Texas filed a federal lawsuit on behalf of 14 youth plaintiffs with disabilities, arguing Abbott’s policy illegally discriminated against children with special needs. In September, the American Independent Foundation spoke with the mother of one of those children, eight-year-old Juliana Longoria, who has ADHD and asthma.

“She understands the science, that masks keep her safe,” Juliana’s mother Julia said. “And it doesn’t just keep her safe, but they keep other kids safe.”

In a statement Thursday, Longoria celebrated the ruling: “My family is very relieved by the Court’s decision,” she said. “For the time being, my child will continue to be protected in school thanks to this decision. For now, we will not be forced to choose between her health and her education.”

In court, Abbott’s legal team argued that his administration wasn’t enforcing the masking ban, and as such he couldn’t be sued. The judge noted, however, that in recent weeks the attorney general “sent letters threatening school districts that have or have intended to implement mask requirements with civil suits,” and in September went on to file six such lawsuits against districts that required masks. Paxton also maintains a list of districts that require masks on his website, highlighting that they have been “reported as non-compliant with Executive Order GA-38.”

In addition to claiming Abbott’s order violated the rights of students with disabilities, Disability Rights Texas also argued that the order was preempted by the American Rescue Plan Act, the $1.9 trillion COVID relief package enacted in March. As a part of the legislation, Congress allocated over $11 billion to Texas public schools to help with safe school reopenings and required that districts that received federal funding develop and make public a “plan for safe return to in-person instruction.”

In his ruling, Yeakel appeared to agree with the plaintiff’s arguments.

“It cannot be more clear that Congress intends that the local school district receiving ARP Act funds be the ultimate decider of the requirements of the safe return to in-person instruction of students within that district,” he wrote.

In a phone interview, Disability Rights Texas litigation attorney Kym Davis Rogers, who argued the case for the plaintiffs, said she was “pleased” with the Court’s ruling.

“All of our students are susceptible to severe consequences from COVID,” Rogers said, “and masking is the best way to protect them.”

Indeed, Yeakel in his opinion pointed to state data showing that more than 210,000 Texas students tested positive for COVID-19 between the beginning of this school year and Oct. 31, and at least 45 Texas school districts were forced to temporarily close due to COVID outbreaks. He highlighted CDC findings of an increased risk of COVID complications for people with medical conditions like Down syndrome, heart or lung ailments, and weakened immune systems.

“The spread of COVID-19 poses an even greater risk for children with special health needs,” Yeakel wrote. “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.”

Several recent studies have demonstrated that schools with mask mandates saw lower rates of COVID transmission than those without them. In Arizona, CDC researchers found that schools in two of the state’s most populous counties were 3.5 times more likely to have COVID-19 outbreaks if they did not have a mask requirement at the start of school compared to schools that required universal masking on day one. Another CDC study showed that during the first two weeks of the school year, counties without school mask mandates saw a greater increase in pediatric COVID case rates than did counties that required masks at schools. The CDC continues to recommend universal masking indoors for all students and school staff.

Despite this, seven states beyond Texas have laws or executive orders prohibiting school districts from requiring masks, though several of those policies have also been struck down in court. The outcome of the Texas case could serve as a precedent for ongoing legal challenges to masking bans in those states.

The Biden administration has also stepped up to support districts that require masks despite being prevented from doing so. The Department of Education has provided funding to several Florida districts that were penalized by Republican Gov. Ron DeSantis for requiring masks, and the department’s civil rights division opened up an investigation into several states which prohibit school masking. Meanwhile, the Department of Justice supported the Texas lawsuit against Abbott, arguing in a formal statement to the court that his order violated the rights of students with disabilities.

Despite their victory in court, lawyers with Disability Rights Texas said they expected more challenges could be coming down the pipeline, predicting that Abbott’s team would appeal the case to the 5th U.S. Circuit Court of Appeals. But Rogers projected optimism that the ruling would hold.

“We think we have a very strong case, and there are five other federal court decisions that reached the same conclusion,” she said. “We’re optimistic about our chances in the 5th Circuit.”

Longoria pleaded that schools be allowed to require masks going forward, regardless of future appeals.

“It is my understanding that the governor intends to appeal this decision,” she said in a statement. “I appeal to those who might yet still be persuaded: please continue to protect my child.”

Published with permission of The American Independent Foundation.