Law & Courts

In a Major Ruling on School Masks, Federal Judge Sides With Vulnerable Students

By Evie Blad — November 11, 2021 5 min read
Juliana Ramirez, 8, a third grader, often crawled into her closet to minimize distractions from her younger siblings when Zooming into school during lockdown last year.
  • Save to favorites
  • Print

A federal court’s decision in Texas about masks in schools has heartened parents of medically vulnerable children, restored authority to their school districts, and bolstered arguments made by federal officials as they investigate similar policies around the country.

Texas unfairly discriminated against students with disabilities when Gov. Greg Abbott, a Republican, issued a May executive order that forbid school districts from setting universal mask requirements during the COVID-19 pandemic, U.S. District Judge Lee Yeakel ruled Wednesday. He issued an injunction to prohibit state officials from enforcing the order.

While judges in other states have temporarily put such bans on hold while they consider similar disability rights arguments, the Texas order is the first final ruling in such a case.

“I know what it feels like as a parent of a child with a disability, just to feel like your kid is being acknowledged, that they’re being seen,” said Julia Longoria, one of the parent plaintiffs in the Texas lawsuit. “I feel like last night [when the ruling was issued], the collective voice of children with disabilities was amplified and that we are acknowledged in this pandemic as being affected.”

Parents of students with disabilities around the country have said they’ve walked a tightrope during the pandemic. Some of the same conditions that make in-person learning and academic interventions more necessary for their children—conditions like Down syndrome—also put them at higher risk for severe illness from the virus if their schools don’t take appropriate precautions to limit transmission.

And some children with specific medical vulnerabilities also need support for learning disabilities. That was the case for Longoria’s daughter, Juliana, 8, who attended her San Antonio school remotely during the 2020-21 school year and only returned in person this year after leaders there agreed to require masks in violation of the state order. The 3rd-grader has asthma and attention-deficit/hyperactivity disorder.

Texas Attorney General Ken Paxton, who has sued districts for setting local mask requirements, seemed to leave the door open to an appeal of Wednesday’s ruling before the 5th U.S. Circuit Court of Appeals.

Pandemic conditions—and school mask policies—continue to shift

While disability rights advocates painted Wednesday’s ruling as a victory, it was unclear what practical effects it would have for schools, including some of those attended by the plaintiffs’ children.

As months of litigation have played out in Texas courts, surging case numbers driven by the more-contagious Delta variant of COVID-19 have declined in many parts of the country. Children as young as 5 recently became eligible to be vaccinated, and some school districts around the country have relaxed or ended student mask requirements.

But the Centers for Disease Control and Prevention still recommends universal masking in schools since rates of transmission are considered “high” in 75 percent of U.S. counties.

“It’s premature to lift all your mask mandates,” Dr. Tina Tan, a pediatric infectious disease expert at Lurie Children’s Hospital in Chicago, told Education Week earlier this month. Still, some other public health experts said it may be acceptable to ease requirements in some places.

Some Texas districts already had defied the state on masks in schools

It’s unclear how Texas districts will respond to the latest federal court ruling. Some, like Longoria’s, had already defied the state by setting local face-covering requirements. On the other hand, the Fort Bend school district’s website said Thursday that the school system “strongly recommends” masks, though officials there have not announced any plans to set a formal requirement. The district backtracked on a mask mandate at the beginning of the school year out of concern that it would violate the executive order.

Karina Pichardo, a plaintiff in the case whose daughter, Miranda, has Down syndrome and attends Fort Bend schools remotely, said in a statement that she was “relieved” by the ruling and that it would allow the family to “work with the school directly to make sure accommodations are appropriate to allow her to attend.”

While the political and public health calculus may have changed for some school leaders in recent months, the judge’s ruling will return the decisions about COVID-19 precautions back to the local level, allowing them to have those discussions with concerned parents, said Dustin Rynders, an attorney in the case.

“I expect that local officials will be able to work with families and make local decisions that make sense,” he said. “They can continue listening to science and to parents and continuing to do what’s right.”

That may include requiring classmates of particularly vulnerable students to wear masks in their classrooms, even if there isn’t a schoolwide rule, Rynders said. And it may also include setting new requirements if another contagious variant emerges.

Disability rights advocates argue against bans on school mask mandates

As of Nov. 11, nine states have banned school districts from setting universal mask mandates, according to a tracker maintained by Education Week. Those bans are in effect in four states. In the remaining five states, mask mandate bans have been blocked, suspended, or are not being enforced. Sixteen states and the District of Columbia require masks be worn in schools.

State leaders like Abbott and Florida Gov. Ron DeSantis, a Republican, have questioned the efficacy of masks and said decisions about whether children wear them should be left to parents.

Meanwhile, the U.S. Department of Education’s office for civil rights has opened investigations into Texas and seven other states that have banned school districts from setting universal mask requirements.

Those investigations raise arguments similar to those that underpinned the Texas court case, asserting that states may be in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 by effectively limiting some students’ ability to attend school in person.

Attorneys have compared such state bans to bans on wheelchair-accessible ramps in buildings.

Juliana, Longoria’s daughter, received her first dose of the COVID-19 vaccine this month. Though needles bring her great anxiety, she rolled her sleeve right up and said “let’s go,” her mother said.

And even though the inoculation brings her some sense of comfort, Longoria said she’s not ready to send her daughter to school in unmasked spaces just yet. She wants her to receive both doses of the vaccine first, and she wants to wait until both the CDC and her pediatrician say it’s safe.

“My appeal to anyone who’s listening is ‘Please continue to protect my child,’” she said. “That’s not a political appeal.”

School Mask Mandates at a Glance

  • As of Nov. 15, nine states have banned school districts from setting universal mask mandates. Those bans are in effect in three states. In the remaining six states, mask mandate bans have been blocked, suspended, or are not being enforced. Seventeen states and the District of Columbia require masks be worn in schools.

  • MASK MANDATE BAN IN EFFECT


    1. Florida

    On Sept. 22, Florida's surgeon general instituted a rule that gives parents and legal guardians "sole discretion" over masking in schools. On Nov. 5, a judge sided with the state health department in a legal challenge to rule. On Nov. 18 Gov. DeSantis signed a bill that allows parents to sue school districts that require masks.

    2. Oklahoma

    On Sept. 1, an Oklahoma judge temporarily blocked the state law banning school mask mandates, but students or their parents can still opt out of school mask mandates if they choose.

    3. Utah

    In Utah, local health departments can issue 30-day school mask mandates with approval from the state or county government, according to the state’s top education official.

    MASK MANDATE BAN BLOCKED, SUSPENDED, OR NOT BEING ENFORCED


    1. Arizona

    On Sept. 27, a judge in Arizona blocked the state laws banning mask mandates that were set to take effect on Sept. 29. On Nov. 2, the Arizona Supreme Court upheld that ruling.

    2. Arkansas

    In Arkansas, a judge paused the state law that prohibits local officials from setting mask mandates, meaning school districts can—at least for now—set their own local mask requirements.

    3. Iowa

    On Sept. 13, a federal judge ordered Iowa to halt enforcement of its law banning mask mandates in schools. The order was later extended.

    4. South Carolina

    On Sept. 28, a federal judge suspended South Carolina from enforcing the rule that banned school districts from requiring masks for students.

    5. Tennessee

    On Nov. 14, a federal judge ordered the temporary suspension of a new Tennessee law that prevented schools from issuing mask mandates.

    6. Texas

    On Nov. 10, a federal judge stopped Texas from enforcing Gov. Greg Abbott's mask mandate ban.

    MASKS REQUIRED


    1. California
    2. Connecticut
    3. Delaware
    4. District of Columbia
    5. Hawaii
    6. Illinois
    7. Louisiana

    According to a State of Emergency proclamation issued Nov. 23, students are required to wear masks in schools, but districts can opt out of the mandate if they adopt an isolation and quarantine policy consistent with the state's department of health protocols.

    8. Maryland
    9. Massachusetts

    On Oct. 26, Massachusetts extended the mask requirement through Jan. 15. On Sept. 27, Massachusetts said schools can apply for a waiver from the face covering rules if 80% of their students and staff have been vaccinated. If a school reaches the 80% threshold, unvaccinated students and employees are still required to wear masks.

    10. Nevada
    11. New Jersey
    12. New York
    13. New Mexico
    14. Oregon
    15. Pennsylvania
    16. Rhode Island
    17. Virginia
    18. Washington
  • Updated 11/29/2021 | Sources: Local media reports | Learn more here

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Mathematics Webinar
Addressing Unfinished Learning in Math: Providing Tutoring at Scale
Most states as well as the federal government have landed on tutoring as a key strategy to address unfinished learning from the pandemic. Take math, for example. Studies have found that students lost more ground
Content provided by Yup Math Tutoring
Classroom Technology Webinar Building Better Blended Learning in K-12 Schools
The pandemic and the increasing use of technology in K-12 education it prompted has added renewed energy to the blended learning movement as most students are now learning in school buildings (and will likely continue

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Opinion What the Law Says About Parents' Rights Over Schooling
The rallying cry of “parental freedom” perpetuated racial segregation, writes a legal scholar. So why would we let it dictate curriculum?
Joshua Weishart
5 min read
People hold signs and chant during a meeting of the North Allegheny School District school board regarding the district's mask policy, at at North Allegheny Senior High School in McCandless, Pa., on Aug. 25, 2021. A growing number of school board members across the U.S. are resigning or questioning their willingness to serve as meetings have devolved into shouting contests over contentious issues including masks in schools.
People at a school board meeting in late August protest the mask policy set by the North Allegheny school district in Western Pennsylvania.
Alexandra Wimley/Pittsburgh Post-Gazette via AP
Law & Courts Justice Dept. to Pay $127.5M to Parkland Massacre Victims' Families
Attorneys for 16 of the 17 killed at Marjory Stoneman Douglas High School in Parkland said they had reached a confidential monetary settlement.
Terry Spencer, Miami Herald
2 min read
In this Feb. 15, 2018, file photo, law enforcement officers block off the entrance to Marjory Stoneman Douglas High School in Parkland, Fla., following a deadly shooting at the school.
In this Feb. 15, 2018, file photo, law enforcement officers block off the entrance to Marjory Stoneman Douglas High School in Parkland, Fla., following a deadly shooting at the school.
Wilfredo Lee/AP Photo
Law & Courts Can Public Money Go to Religious Schools? A Divisive Supreme Court Case Awaits
The justices will weigh Maine's exclusion of religious schools from its "tuitioning" program for students from towns without high schools.
13 min read
The Carson family pictured outside Bangor Christian School in Bangor, Maine on Nov. 5, 2021.
Institute for Justice senior attorney Michael E. Bindas, left, accompanies Amy and David Carson who flank their daughter, Olivia, outside Bangor Christian Schools in Maine in early November. The Carsons are one of two families seeking to make religious schools eligible for Maine's tuition program for students from towns without high schools.
Linda Coan O’Kresik for Education Week
Law & Courts Students Expelled, Suspended for 'Slavery' Petition Sue District
The lawsuit claims the officials violated the students’ First Amendment, due process, and equal protection rights.
3 min read
Image of a gavel.
Marilyn Nieves/E+