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.”
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.”
Nine states have banned school districts from setting universal mask mandates. Those bans are in effect in five states. In the remaining four 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.
MASK MANDATE BAN IN EFFECT
- South Carolina
MASK MANDATE BAN BLOCKED, SUSPENDED, OR NOT BEING ENFORCED
- District of Columbia
- New Jersey
- New Mexico
- Rhode Island
*On Sept. 10, a Florida judge reinstated the state’s ban on school mask mandates.
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 the requirement if they choose.
Tennessee‘s governor has signed an executive order requiring schools to allow families to opt out of mask mandates.
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.
An Arizona judge ruled the state law banning mask mandates will not go into effect until Sept. 29.
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.
On Sept. 13, a federal district court ordered Iowa to immediately halt enforcement of its law banning mask mandates in schools.
The Texas Education Agency said on Aug. 20 that Gov. Abbott’s executive orders banning mask requirements in schools “are not being enforced” amid ongoing legal battles. Meanwhile, the state’s attorney general has sued some districts who are defying the ban.
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.
“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.”
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