A federal judge has overturned Texas’s prohibition on mask mandates, finding that Gov. Greg Abbott’s (R) executive order violates the rights of children with disabilities.
On July 29 this year, Gov. Abbott issued an order prohibiting governmental entities, including public school districts, from imposing mask requirements and punishing violations with up to a $1,000 fine. Seven students with disabilities sued the following month, claiming that the ban violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by denying reasonable accommodations for children with special health needs.
Led by a Round Rock student whose identity is shielded as “E.T.,” the children behind the lawsuit have been diagnosed with Down syndrome, a heart defect, asthma, immune deficiency, underlying reactive airway disease, spina bifida, chronic respiratory failure, and cerebral palsy. They claim that these conditions place them at heightened risk for contracting COVID-19, a deadly disease.
In October, U.S. District Judge Lee Yeakel presided over a bench trial, and he found on Wednesday that the evidence tilted in favor of the students.
“The evidence presented to the court establishes that GA-38 forbids and Paxton’s enforcement of GA-38 forcefully prohibits school districts from adopting a mask mandate of any kind, even if a school district determines after an individual assessment that mask wearing is necessary to allow disabled students equal access to the benefits that in-person learning provides to other students,” wrote Yeakel, a George W. Bush appointee. “Denying students with disabilities the equal opportunity to participate in in-person learning with their non-disabled peers means that they are being ‘excluded from participation in or be[ing] denied the benefits of the services, programs, or activities of a public entity.'”
Kym Davis Rogers, litigation attorney at Disabilities Rights Texas, expressed gratitude that “school districts can now take the steps necessary to protect these students.”
“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 in a statement.
Abbott’s press secretary Renae Eze noted that the governor is disabled, as a result of an accident that occurred when an oak tree fell on him when he was running in Houston in 1984.
“As a paraplegic himself, Governor Abbott cares deeply about the health and safety of disabled students, just as he does for all Texas students. Governor Abbott continues to advocate for Texans with disabilities through the Texas Governor’s Committee on People with Disabilities,” Eze wrote in an email statement. “Nevertheless, he believes the federal district court’s decision to be flawed and is working with the Attorney General’s office to appeal that decision in order to protect Texans’ rights against school districts attempting to impose mask mandates.”
The judge’s 29-page opinion recites the grim statistics about the pandemic serving as background to his ruling.
As of Nov. 4, authorities have reported 6,503,629 total children infected with COVID-19 in the United States, representing more than 16.7% of the nation’s total cases.
“The prevalence of pediatric COVID-19 cases has increased dramatically since the 2021-2022 school year began, with 23% of all child cases since the beginning of the pandemic diagnosed between Aug. 13 and Sept. 23, 2021,” the ruling states. “This surge in child cases appears to be due to two principal factors: the resumption of in-person schooling and the emergence of the Delta variant of COVID-19, which is more than twice as contagious as previous variants.”
Since this issuance this past summer, the governor’s executive order immediately faced legal challenges, but the Supreme Court of Texas ultimately upheld the policy, leading to a celebratory tweet by the Lone Star State’s Attorney General Ken Paxton (R).
“BIG WIN FOR LAW & LIBERTY! @GregAbbott_TX’s ban on mask mandates is clear. Dem local govts didn’t care. So I sued them,” Paxton tweeted on Aug. 26. “Dem judges sided with local D friends. SCOTX just ruled: The Gov’s exec order stands. ALL public entities must comply or be sued and lose over and over again.”
The federal lawsuit following that tweet named Paxton as a defendant, along with the Texas Education Agency and its commissioner Mike Morath. The students originally also sued Abbott, who was dismissed as a defendant in September.
Paxton did not immediately respond to Law&Crime’s email requesting comment.
Update—Nov. 11 at 8:16 p.m. Eastern Time: This story has been updated to include comment from Gov. Abbott’s press secretary.
Read the ruling, below:
(Photo by Loren Elliott/Getty Images)
Have a tip we should know? [email protected]