Law & Courts

School Districts Defying Texas Mask Ban Face Setback From State Supreme Court

By Chuck Lindell, Austin American-Statesman — August 16, 2021 6 min read
Image shows lady justice standing before an open law book and gavel.
  • Save to favorites
  • Print

The Texas Supreme Court stepped in Sunday evening to block lower-court orders that had allowed Dallas and San Antonio to impose mask mandates in defiance of an executive order by Gov. Greg Abbott.

The action voided temporary restraining orders, issued by separate District Court judges and upheld Friday by two intermediate appellate courts, that halted enforcement of Abbott’s July 29 edict that prohibited local officials from requiring face masks to be worn indoors.

However, a growing number of local jurisdictions — including Austin, Travis County, and numerous area school districts — have implemented mask mandates despite Abbott’s order as the highly contagious delta variant has produced a sharp rise in COVID-19 infections, overrunning intensive care units in adult and children’s hospitals across Texas.

Many local mask requirements focused on schools because children under 12 lack access to the COVID-19 vaccine, and officials outside of Dallas and San Antonio said Sunday that they intended to continue enforcing mandatory masks.

Austin Mayor Steve Adler and Travis County Judge Andy Brown, who last week required face coverings to be worn inside public schools and government buildings to deal with a surge in COVID-19 infections, insisted the orders remained in effect because Sunday’s court action did not involve their rules.

“While we await a final decision, we believe local rules are the rules,” Adler said on Twitter. “Regardless of what eventually happens in the courts, if you’re a parent, please keep fighting to have everyone in schools masked. We stand with you.”

The Austin Independent School District announced late Sunday that masks will still be required in all schools and facilities “regardless of the latest Texas Supreme Court ruling,” because it applied to areas outside of Austin and Travis County. Austin schools start Tuesday.

Also Sunday, state District Judge Jan Soifer of Austin issued a series of temporary restraining orders that allowed mask mandates in any Texas school district — including “any public school located within Travis County” — as well as Harris County schools and a group of eight school districts, seven of them in South Texas and one in the Dallas area.

Soifer had said she would issue the orders during a hearing Friday.

‘Mask mandates are illegal’

Abbott and Attorney General Ken Paxton are challenging local mask mandates as illegal under the governor’s emergency powers during a declared disaster. Those challenges remain before the Supreme Court and are expected to be decided later.

“Let this ruling serve as a reminder to all (school districts) and local officials that the governor’s order stands,” Paxton said on Twitter. “Local mask mandates are illegal.”

See Also

Dallas Independent School District Superintendent Dr. Michael Hinojosa announces that masks will be required at all Dallas ISD schools at DISD headquarters in Dallas, Monday, August 9, 2021.
Dallas Independent School District Superintendent Michael Hinojosa announces that masks will be required at all district schools earlier this week in Dallas.
Brandon Wade/The Dallas Morning News via AP

Abbott, who has said Texans — not government — must be responsible for their own health, also took to Twitter to announce the ruling, adding: “The ban doesn’t prohibit using masks. Anyone who wants to wear a mask can do so, including in schools.”

Some of those local mask mandates were based on a statewide temporary restraining order, issued by state District Judge Tonya Parker in Dallas County, that prohibited Abbott from enforcing his ban on required masks.

The Supreme Court action Sunday, however, blocked Parker’s restraining order — and it was unclear how school districts will react, particularly those where school doors will open on short notice early Monday morning.

Next step in the legal process

Sunday’s Supreme Court action did not stop the next step in the legal process — trial court hearings Monday in San Antonio and Aug. 24 in Dallas on whether to issue temporary injunctions that would allow mask mandates. The now-blocked restraining orders were intended to allow masking requirements to continue until the injunction matters are settled.

Dallas County Judge Clay Jenkins, who last week required that masks be worn inside schools and businesses, said the legal fight is far from over.

“We won’t stop working with parents, doctors, schools, business and others to protect you and intend to win that hearing” on Aug. 24, he said on Twitter. “Unless I receive a ruling requiring otherwise, I will amend my order to remove the possibility of fines on noncompliant businesses but otherwise leave the order in effect.”

School Mask Mandates at a Glance

This information is no longer being updated. The last data update was on May 23, 2022.

  • 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. Georgia

    On March 29, Gov. Kemp signed the “Unmask Georgia Students Act” which allows parents to exempt their child from a school mask requirement. The law went into effect immediately.

    3. Iowa

    On Sept. 13, 2021, a federal judge ordered Iowa to halt enforcement of its law banning mask mandates in schools. On Jan. 25, 2022, a federal appeals panel narrowed that injunction. Iowa’s attorney general announced the state is not enforcing the ban while awaiting further action from the court. On May 16, 2022 a U.S. Court of Appeals lifted the injunction.

    4. 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.

    5. 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.

    6. Virginia

    On Jan. 15, Gov. Youngkin issued an executive order allowing parents to opt their child out of any school mask mandate. It effectively rescinded the state's school mask requirement that had been in place since August. That executive order was later halted by a judge. On Feb. 14, the Virginia legislature passed a measure that bans school mask mandates. That bill was signed by the governor on Feb. 16 and went into effect on March 1.

    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. On April 25, Gov. Ducey signed HB2616, which prevents schools from requiring a student to wear a mask without first getting parental consent. The ban, which replaces the one blocked by the courts, will go into effect 90 days after the legislature adjourns.

    2. Arkansas

    An Arkansas judge ruled on Dec. 29, that a law signed by the governor in April that prohibited local officials, including school boards, from setting mask mandates was unconstitutional. School districts have been able to set their own mask requirements since August when the judge put the law on hold.

    3. South Carolina

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

    4. Tennessee
    5. Texas

    On March 17, an appeals court upheld an injunction that blocked Gov. Abbott's executive order banning mask mandates in schools, finding it is unlawful and exceeding the governor's authority. This is not the first time the state's ban has been halted by a judge.

    MASK REQUIREMENT IN EFFECT


    1. Hawaii

    Although Hawaii's state-wide indoor mask mandate ended on March 25, indoor masking will still be required in public schools at least through the summer.

    PREVIOUSLY HAD MASK REQUIREMENT


    1. California

    On Feb. 28, the governors of California, Oregon, and Washington issued a joint announcement that mask requirements would end in their states effective March 12.

    2. Connecticut

    On Feb. 7, Gov. Lamont announced that the school mask rule would expire Feb. 28. He signed a bill on Feb. 15 that made the expiration date official.

    3. Delaware

    On Feb. 7, Gov. Carney amended his emergency order to allow his state-level school mask requirement to expire March 31. On Feb. 28, he announced that masks would no longer be required effective at 6:00 p.m. on Tuesday, March 1.

    4. District of Columbia

    On March 8, the department of health released updated guidelines that recommend universal masking only when community COVID-19 levels are high.

    5. Illinois

    On Feb. 5, a judge issued a temporary restraining order on the governor's statewide mask requirement. On Feb. 25, the state supreme court vacated that order. On the same day, the governor announced he would lift the requirement on Feb. 28.

    6. Kentucky

    Kentucky's school mask mandate ended in September, when the state legislature voted to limit the governor’s emergency powers.

    7. Louisiana

    According to a State of Emergency proclamation issued Nov. 23, which was extended on Jan. 19, students were required to wear masks in schools, but districts could opt out of the mandate if they adopted an isolation and quarantine policy consistent with the state's department of health protocols. On Feb. 16, Gov. Bel Edwards extended the order without requiring masking in schools.

    8. Maryland

    On Jan. 5, the mask mandate was extended for 180 days, but allowed school districts to opt out if certain vaccination rates were met. On Feb. 22, the state board of education voted to rescind the mandate. On Feb. 25, a state legislative committee gave final approval to lift the mandate effective March 1.

    9. Massachusetts

    On Sept. 27, the state began allowing schools to apply for a waiver from the face covering rules for vaccinated individuals if certain vaccination rates were met. On Feb. 9, officials announced the statewide mask requirement for K-12 schools would be lifted on February 28.

    10. Nevada

    On Feb. 10, Gov. Sisolak announced the immediate suspension of the school mask requirement. The previous mask requirement had only applied to counties with populations of 100,000 people or more.

    11. New Jersey

    On Feb. 7, Gov. Murphy announced plans to end his state’s school-mask requirement on March 7.

    12. New Mexico

    On Feb. 17, Gov. Grisham announced the end of the mask requirement, effective immediately.

    13. New York

    On Jan. 24, a judge struck down the state's mask mandate. A day later, an appeals judge restored the mandate. On Feb. 27, Gov. Hochul announced the mandate would be lifted on March 2.

    14. Oregon

    On Feb. 7, health officials said the state would drop its school mask requirement no later than March 31. On Feb. 24, the Oregon Health Authority announced the requirement would lift on March 19. However, on Feb. 28, the governors of California, Oregon, and Washington issued a joint announcement that mask requirements would end in their states effective March 12.

    15. Pennsylvania

    A statewide mask mandate for Pennsylvania schoolchildren was thrown out by the state Supreme Court on December 10.

    16. Rhode Island

    On Feb. 9, Gov McKee announced the school mask mandate would only remain in effect until March 4. On Feb. 15, he signed an executive order specifying that the order would take effect at 5 p.m. on March 4.

    17. Virginia

    On Jan. 15, Gov. Youngkin issued an executive order allowing parents to opt their child out of any school mask mandate. It effectively rescinded the state's school mask requirement that had been in place since August. That executive order was later halted by a judge. On Feb. 14, the Virginia legislature passed a measure that bans school mask mandates. That bill was signed by the governor on Feb. 16 and went into effect on March 1.

    18. Washington

    On Feb. 17, Gov. Inslee announced the state's school mask requirement will end effective March 21. However, on Feb. 28, the governors of California, Oregon, and Washington issued a joint announcement that mask requirements would end in their states effective March 12.

  • NOTES
    In January 2022, the Missouri attorney general, Eric Schmitt, sued some school districts that required masks, citing a November ruling by a county judge that said local health orders tied to COVID-19 were illegal. (The ruling was interpreted differently by different districts.) The state’s treasurer announced he would also crack down on schools with mask mandates. In mid-March, Schmitt began dropping lawsuits against school districts that no longer required masks. On May 19, 2022 Schmitt announced new lawsuits against several districts that had reinstated mask requirements.
    On Feb. 23, 2022, New Hampshire’s governor announced the state was no longer recommending universal indoor masking and therefore schools have to end mask mandates, arguing they violate state education department rules. Soon after, the department advised districts that the mandates “are inconsistent with” their rules. There’s disagreement over whether districts still have the authority to require masks, but at least one district changed its policy in response. A bill that would have banned mask mandates was vetoed by Gov. Sununu in May 2022.
    Updated 5/23/2022 | Sources: Local media reports, Education Week reporting | Learn more here

A number of other mask mandates rely on trial court orders not yet before the Supreme Court, including the restraining orders issued Sunday by Soifer for Travis County and Harris County schools.

Harris County Attorney Christian Menefee said Sunday’s Supreme Court action did not affect his county, and he plans to move forward toward an injunction hearing set for Aug. 25. Soifer, a Democratic state district judge, also set separate injunction hearings affecting Travis County schools for Aug. 23 and affecting all Texas school districts for Aug. 25.

Meantime, Jose Menéndez, D- San Antonio, said he was launching a legal defense fund to pay fines for schools that defy Abbott’s executive order by requiring masks. Bexar County Commissioner Justin Rodriguez committed $10,000 to help his county’s school districts pay “any frivolous fines.”

State law allows for fines of up to $1,000 against jurisdictions or officials that disobey a governor’s order during a declared disaster.

‘Being consumed by the flames’

A number of organizations, advocacy groups, and school districts filed briefs over the weekend urging the Supreme Court to uphold mask mandates.

Disability Rights Texas said school officials should be allowed to follow federal health guidelines by requiring masks, saying it would help protect students with disabilities who face a higher risk of hospitalization, severe illness, or death should they contract COVID-19.

See Also

Rosalind Osgood, Broward County Public Schools board member, hands out lunch to the community while schools are closed for the week amid the virus outbreak at Dillard High School on March 16, 2020, in Fort Lauderdale, Fla.
Rosalind Osgood, Broward County Public Schools board member, hands out lunch to the community while schools are closed for the week amid the virus outbreak at Dillard High School on March 16, 2020, in Fort Lauderdale, Fla.
Brynn Anderson/AP

“The executive order at issue here is not mere inattention to a fire; it is an attempt to prevent any fire brigade from fighting the fire as it deems best while the citizens risk being consumed by the flames,” Disability Rights Texas told the court.

The Texas Association of School Boards said public school districts are responsible for the health and safety of more than 5 million students who are required to attend school.

“A blanket prohibition against requiring masks in public school districts is an intrusion on local authority and an impediment to school districts’ ability to take local responsibility for the safety of a largely unvaccinated school population,” the organization told the court.

“School districts across the state are simply asking for the flexibility to set guidelines for student and staff health measures when their communities are demanding it and when school leaders determine it would be best for their students and educators,” the association added.

The Dallas County Medical Society, representing 8,400 doctors and students, said public masking is effective at reducing the spread of the coronavirus, particularly when all parties are masked.

“Our emergency rooms are rapidly becoming overloaded because of the increased number of patients requiring emergency care. Patients who require hospitalization are waiting hours, even days, to be admitted to a hospital room,” the society told the court.

The workload also is taking a toll on the physical and mental health of doctors and medical professionals, the society said, adding: “The current rate of effort being expended is unsustainable.”

Copyright (c) 2021, Austin American-Statesman. Distributed by Tribune Content Agency.

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
Professional Development Webinar
Strategies for Improving Student Outcomes with Teacher-Student Relationships
Explore strategies for strengthening teacher-student relationships and hear how districts are putting these methods into practice to support positive student outcomes.
Content provided by Panorama Education
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
Classroom Technology Webinar
Transform Teaching and Learning with AI
Increase productivity and support innovative teaching with AI in the classroom.
Content provided by Promethean
Curriculum Webinar Computer Science Education Movement Gathers Momentum. How Should Schools React?
Discover how schools can expand opportunities for students to study computer science education.

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 Maine OKs First Religious School for Tuition Reimbursement
A Supreme Court ruling had ordered the state to treat religious schools the same as other private schools regarding tuition reimbursement.
1 min read
The U.S. Supreme Court building in Washington, Monday, June 27, 2022.
The U.S. Supreme Court building in Washington, Monday, June 27, 2022.
Patrick Semansky/AP
Law & Courts A School Librarian Pushes Back on Censorship and Gets Death Threats and Online Harassment
Amanda Jones lost her legal battle against online harassers this week but vows to continue to press her case.
7 min read
Amanda Jones, a librarian in Livingston Parish, La., pictured on Sept. 13, 2022. Jones is suing members of a Facebook group who harassed her virtually after she spoke against censorship in a public library meeting. Jones received angry emails and even a death threat from people across the country after she filed the lawsuit.
Amanda Jones, a librarian in Livingston Parish, La., is suing members of a Facebook group who harassed her virtually after she spoke against censorship in a public library meeting.
Claire Bangser for Education Week
Law & Courts Affirmative Action Cases Lead What Could Prove Another Momentous Supreme Court Term
The cases on race in college admissions could affect K-12. The justices will also weigh copyright, American Indian law, and LGBTQ rights.
7 min read
The U.S. Supreme Court building in Washington, Monday, June 27, 2022.
The U.S. Supreme Court building in Washington, Monday, June 27, 2022.
Patrick Semansky/AP
Law & Courts As Rhetoric Heats Up, Many Parents Fear Politicians Are Using Children As ‘Political Pawns’
Not all parents buy the rationale policymakers have offered for limiting discussions of race and LGBTQ issues in school.
3 min read
Image of a book with a blue and red pen.
Laura Baker/Education Week and iStock/Getty