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.
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.”
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
MASK MANDATE BAN BLOCKED, SUSPENDED, OR NOT BEING ENFORCED