A federal judge ruled Wednesday that Gov. Greg Abbott’s executive order prohibiting mask mandates in schools violates the Americans with Disabilities Act — freeing local officials to again create their own rules.
The order comes after a monthslong legal dispute between parents, a disability rights organization and Texas officials over whether the state was violating the 1990 law, known as the ADA, by not allowing school districts to require masks. U.S. District Judge Lee Yeakel barred Attorney General Ken Paxton from enforcing Abbott’s order.
“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.”
The judge said the governor’s order impedes children with disabilities from the benefits of public schools’ programs, services and activities to which they are entitled.
The advocacy group, Disability Rights Texas, filed the federal lawsuit on behalf of several Texan families in late August against Abbott, Paxton and Texas Education Agency Commissioner Mike Morath. It states that the governor’s order and the TEA’s enforcement of it deny children with disabilities access to public education as they are at high risk of illness and death from the virus.
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.
Rogers said she doesn’t rule out the state appealing the decision in the 5th U.S. Circuit Court of Appeals because the state has done so before, most recently with its new law that bans abortions after as early as six weeks.
The TEA, Paxton and Abbott did not immediately respond to a request for comment.
In court documents, Ryan Kercher, the attorney representing the state, argued that neither of them — the attorney general nor the state education agency — were enforcing the executive order so they couldn’t be sued.
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.
Among those Texas districts sued by the state was Longview ISD. The lawsuit sought a temporary restraining order and temporary injunction to stop the district from enforcing its mask mandate that was issued in August.
However, Longview ISD announced Monday that it would end its mask rule next week because of a continuing decline of COVID-19 cases in the district.
The status of the lawsuits against Longview as well as suits against other Texas school districts was unclear after Wednesday’s ruling.
Attorneys with the U.S. Department of Justice have weighed in with a formal statement in this case. They argued that the banning of mask mandates in Texas public schools keeps disabled children from accessing in-person classes during the ongoing coronavirus pandemic. They also argued that Texas schools can’t merely rely on online classes to avoid violating the ADA. Instead, the federal agency contends, Texas schools must offer disabled students every available class option.
Disability Rights Texas accused Texas of violating the ADA and the Rehabilitation Act, which forbids organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services.
The case was filed and heard while Texas schools had more coronavirus cases in the first two months of the school year than they did in the entire 2020-21 school year.
The U.S. Department of Education Office for Civil Rights is also investigating the TEA after finding the state agency’s guidance prohibiting mask mandates in schools may be “preventing school districts in the state from considering or meeting the needs of students with disabilities.”