Gov. Greg Abbott’s order banning mask mandates in Texas schools faces lawsuit, defiance by big-city districts

Photo does not have a caption

Resistance is growing to Gov. Greg Abbott’s May executive order that Texas schools can’t require masks, with an advocacy group suing to block the order and some of the state’s biggest districts issuing mask mandates anyway or indicating they want to.

On Thursday, the NAACP is holding a news conference to call for student safety for all Houston students:

Dallas Independent School District officials announced Monday morning that they will require students and teachers to wear masks on campus. Austin ISD’s superintendent also announced late Monday that masks would be required, according to KXAN-TV. Houston ISD Superintendent Millard House II has said he wants to issue a mandate, too, and a school board meeting for Texas’ biggest district to discuss the idea is scheduled for this week.

On Tuesday, officials in Bexar County sued Abbott, seeking the power to impose a local mask mandate in their schools.

Meanwhile, the Southern Center for Child Advocacy, a nonprofit education group, filed a lawsuit Sunday night in Travis County against Abbott and his executive order prohibiting school districts, governmental bodies or any public or private entity that is receiving or will receive public funds from requiring masks.

In the absence of a statewide mask mandate, the group seeks to give the power to enforce mask wearing back to local school districts, said Hank Bostwick, volunteer center coordinator and lawyer.

Abbott’s order, issued in the spring when coronavirus cases were on the decline, limits school officials’ ability to respond to the pandemic, which at the moment is in the middle of what some health experts are calling a third wave. With the delta variant being more infectious, cases are on the rise and more children are being sent to hospitals.

Watch below: Texas Gulf Coast Area Labor Federation addresses school safety measures, COVID-19

Abbott stated earlier this month that he was past the point of issuing government mandates to slow the spread of COVID-19, even as the delta variant has cases and hospitalizations up across the nation. Instead, he said it is time for personal responsibility, which he emphasized when he took away the statewide mask mandate earlier this year.

“Going forward, in Texas, there will not be any government-imposed shutdowns or mask mandates,” he said. “Everyone already knows what to do.”

Texas State Teachers Association President Ovidia Molina said in a statement that she urges other school districts to join Dallas ISD in requiring masks and also called for Abbott to rescind his executive order.

“We agree with Dallas Superintendent Michael Hinojosa that it is within a school district’s discretion to take steps to ensure the health and safety of its students and employees,” Molina said.

The lawsuit claims that Abbott is overeaching his authority and that his emergency powers should be used to take proactive steps and “not to advance an anti-mask political agenda that has no discernible basis in the data regarding the COVID-19 contagion rate.”

“This is purely political gamesmanship, and has nothing to do with the health and safety of Texas children or their teachers,” Bostwick said.

The lawsuit highlights that people of color are still lagging behind in vaccination rates and getting these families back in schools without proper protection makes them vulnerable to an increased rate of infection.

“The threat to the health and safety of Texas public school students and teachers is imminent and real,” the lawsuit states.

The group also claims that the governor is in violation of Texas education code because children with disabilities “are entitled to learn and interact with their non-disabled or typical peers in a safe and healthy educational environment.” The order not allowing masks means some of these students may be unable to attend school in person if masking is not required, the lawsuit claims.

But as the school year begins, some schools are openly defying the governor’s order.

“Governor Abbott’s order does not limit the district’s rights as an employer and educational institution to establish reasonable and necessary safety rules for its staff and students,” Dallas ISD said in a statement. “Dallas ISD remains committed to the safety of our students and staff.”

Renae Eze, a spokesperson for Abbott, said in a statement that only parents and guardians have the right to choose whether or not their children wear masks, otherwise it's a violation of rights. The best way to combat coronavirus is getting vaccinated, she said.

"We are all working to protect Texas children and those most vulnerable among us, but violating the Governor’s executive orders—and violating parental rights—is not the way to do it," Eze said. "Governor Abbott has been clear that the time for mask mandates is over; now is the time for personal responsibility."

At the moment though, children under 12 are not eligible for the vaccine and parents of that age group continue to worry.

House, the Houston superintendent, said last week that he expects pushback on his attempt to impose a mask mandate, but that “if we have an opportunity to save one life, it’s what we should be doing.”

Under Abbott’s order, entities that defy the governor are subject to a $1,000 fine, but it is unclear how this would apply to school districts.

The ongoing concern over safely returning to classrooms spurred over 100 Austin ISD families to form Safe Schools for All to advocate for local control. Member Mike Siegel, an Austin ISD parent of two kids under 12, said before the district’s new mask mandate was announced that districts across the state need to form a coalition and fight back together to combat a potential legal battle or fines.

“When people run for school board, they don’t think of themselves as preparing to go to war with the governor,” Siegel said. “So right now I just want to give a lot of support to our school board trustees.”

Lana Hansen, mother of two Austin ISD students under 12, said she cannot wrap her head around why Abbott would take away school official’s power to protect their communities.

“We all know that what’s best for Austin isn’t best for Fredericksburg or Lubbock or Houston, like that’s why we have our own elected officials,” Hansen said.

In Fort Worth, school officials announced Monday that they would not require masks, but would strongly recommend them.

Concern over COVID-19 has flared over the past months as the delta variant has taken hold and last Thursday, the Texas Education Agency announced guidance that drew pushback from many parents and advocacy groups.

The TEA said Texas school districts will not be required to conduct contact tracing this year if a student contracts COVID-19. But the agency did allow for remote learning for up to 20 days for students who are sick with COVID-19 or have been exposed to it. If more time is needed, schools can apply for waivers.

Longer-term remote learning has largely been defunded after it was offered at the start of the pandemic, and efforts to allocate funding for it have so far failed in the Legislature this year.

Disclosure: Texas State Teachers Association has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

Join us Sept. 20-25 at the 2021 Texas Tribune Festival. Tickets are on sale now for this multi-day celebration of big, bold ideas about politics, public policy and the day’s news, curated by The Texas Tribune’s award-winning journalists. Learn more.

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.