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
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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

  • As of Jan. 24, five states have bans in effect that prevent school districts from setting universal mask mandates, according to an Education Week analysis. Five additional states have such bans, but they have been blocked, suspended, or are not being enforced. Fifteen states and the District of Columbia require masks be worn in schools.


    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. Texas

    On Dec. 1, an appeals court halted a federal judge’s order that had stopped Texas from enforcing its ban on mask mandates in schools, allowing the prohibition to remain in effect.

    4. 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.

    5. Virginia

    An executive order from Gov. Youngkin that took effect on Jan. 24, 2022 allows parents to opt their child out of any mask mandate at their school. The order also rescinded the state's school mask requirement that had been put in place since August. The order has caused confusion and prompted lawsuits.


    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

    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. Iowa

    On Sept. 13, a federal judge ordered Iowa to halt enforcement of its law banning mask mandates in schools. On Jan. 25, a federal appeals panel narrowed that injunction, allowing enforcement of the ban, in all but 10 districts. The panel's decision has yet to take effect, so the state is still not enforcing the ban.

    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


    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, and most recently extended on Jan. 19, 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

    On Jan. 5, the mask mandate was extended for 180 days, but newly allowed school districts to opt out if at least 80% of the county or 80% of their students and staff have been fully vaccinated.

    9. Massachusetts

    On Jan. 10, Massachusetts extended the state's mask requirement through Feb. 28. 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

    On Dec. 7, a judge ruled New Jersey's school mask mandate is "rational" and does not violate the U.S. Constitution.

    12. New Mexico
    13. New York

    On Jan. 24, a judge struck down the state's mask mandate. A day later, an appeals judge restored the mandate.

    14. Oregon
    15. Rhode Island
    16. Washington
  • Note: In Missouri, the state attorney general has sued some school districts that require masks, citing a November ruling by a county judge that said local health orders tied to COVID-19 are illegal. (The ruling is being interpreted differently by different districts.) The state’s treasurer announced he was also cracking down on schools with mask mandates.
    Updated 01/26/2022 | Sources: Local media reports | 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.


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