AUSTIN, Texas — A federal judge ruled Wednesday that Gov. Greg Abbott’s executive order that bans public schools from imposing mask mandates cannot be enforced because it violates federal law by putting students with disabilities at greater risk of contracting COVID-19.

U.S. District Judge Lee Yeakel also blocked Texas Attorney General Ken Paxton from bringing legal action against school districts that require students, teachers and staff to wear face coverings as a pandemic safety measure.

Yeakel’s injunction also blocked state officials from imposing fines or withholding state money from districts with mask mandates.

Paxton — who has filed lawsuits to overturn mask mandates in 15 school districts, and who has threatened similar action against dozens more — is expected to appeal the decision.

“I strongly disagree with Judge Yeakel’s opinion barring my office from giving effect to GA-38,” Paxton said on Twitter. “My agency is considering all legal avenues to challenge this decision.”

Ruling in favor of seven students with various disabilities and medical conditions, Yeakel said Abbott’s order — issued July 29 and known as GA-38 — violates the Americans with Disabilities Act by denying the students the opportunity to participate equally in school.

The evidence, Yeakel wrote, shows that wearing masks can decrease the risk of spreading COVID-19 — a particularly useful strategy for children with disabilities who can be at higher risk of contracting the respiratory disease and suffering severe symptoms that require hospitalization.

“Because GA-38 precludes mask requirements in schools, (students with disabilities) are either forced out of in-person learning altogether or must take on unnecessarily greater health and safety risks than their nondisabled peers,” Yeakel wrote.

Either way, he added, they are denied the opportunity to participate equally in school as required by federal law.

Tom Melsheimer, a Dallas lawyer who represented the students and the advocacy group Disability Rights Texas, praised the ruling.

“Going forward, school districts all over the state will be free to follow sound medical science and common sense to protect the most vulnerable among us. Who can reasonably object to such a result?” Melsheimer said.

Yeakel’s injunction blocked enforcement of Abbott’s executive order only as it pertained to schools. The governor’s ban on mask mandates imposed by city and county governments or public health officials remains in place.

In addition to finding violations of the Americans with Disabilities Act, Yeakel said Abbott’s order ran afoul of the U.S. Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability, and the American Rescue Plan Act that was signed into law earlier this year.

The rescue plan provided almost $121 billion to help schools return safely to in-person instruction amid the continuing pandemic, including $11 billion allocated to schools in Texas — giving local officials the authority to determine how that money should be spent to address health and safety needs.

State actions that restrict that discretion are not allowed, Yeakel wrote.

“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,” he wrote.

Since the school year began several months ago, at least 45 Texas school districts had to temporarily close campuses to contain COVID-19 outbreaks, Yeakel noted, adding that federal health officials recommend universal indoor masking in schools despite the vaccination status of students, employees and visitors.

But Abbott’s executive order is a universal ban on mask requirements, handcuffing school officials who determine that limited mandates — for one classroom or building wing, for example, or during one-on-one instruction — would improve the safety of students with disabilities, the judge said.

“GA-38 expressly prohibits a school district from requiring ‘any person to wear a face covering,’ clearly forbidding such a reasonable modification no matter the scope of a local school’s mask mandate,” Yeakel wrote.

Paxton had asked the judge to toss out the lawsuit, arguing that the students must be denied their requested injunction because they complained of “speculative” injuries — the possibility of becoming infected with COVID-19 at school or being forced to stay home to avoid the disease.

Yeakel rejected that line of reasoning, saying Abbott’s policy deprives students with disabilities — some of whom have contracted COVID-19 — of their right to equal participation in school.

“They do not have to show that Paxton’s enforcement of GA-38 will actually cause any of them to contract COVID or that they would actually contract COVID in a mask-optional school environment,” Yeakel wrote.

According to a list maintained by Paxton, 62 school districts and eight public charter schools have mask mandates that he is seeking to overturn, including Austin, Del Valle, Elgin, Manor, Pflugerville, Round Rock and San Marcos in Central Texas.

All but four of the districts across Texas have been sued by Paxton or have received a letter threatening legal action if the mandates are not rescinded.

Zeph Capo, president of the Texas American Federation of Teachers, said the ruling corrected “misguided blanket orders” from Abbott.

“With the opportunity now to vaccinate our younger students, we look forward to letting districts work with their local health officials to decide on the best means to keep their students and teachers safe,” he said.

© 2021 www.statesman.com
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