Texas Not Enforcing Ban on School Mask Mandates Amid Ongoing Legal Battles

By María Méndez and Chuck Lindell, Austin American-Statesman (Austin, Texas) — August 20, 2021 3 min read
Stillman Middle School students in face masks walk through their campus courtyard to class during their first day back to school Tuesday, Aug. 17, 2021, in Brownsville, Texas.
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Texas is not enforcing Gov. Greg Abbott’s executive orders banning mask requirements in public schools because of ongoing legal battles in state and federal courts, the Texas Education Agency said Thursday in updated health guidance.

It’s the most clarity that school districts have received in weeks since local officials and school district leaders began challenging Abbott’s orders amid a sharp rise in COVID-19 cases from the highly contagious delta variant.

“Please note, mask provisions of GA-38 are not being enforced as the result of ongoing litigation,” TEA said in its guidance to school districts updated Thursday. “Further guidance will be made available after the court issues are resolved.”

Abbott’s July 29 executive order, known as GA-38, prohibits mask mandates by cities, counties, school districts and public health officials as part of the governor’s belief that health decisions belong to individuals, not governments, and Texans are free to wear masks if they choose.

School Mask Mandates at a Glance

  • Nine states have banned school districts from setting universal mask mandates. Those bans are in effect in six states. In the remaining three 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.


    1. Florida*
    2. Oklahoma*
    3. South Carolina
    4. Tennessee*
    5. Texas*
    6. Utah*


    1. Arizona*
    2. Arkansas*
    3. Iowa*


    1. California
    2. Connecticut
    3. Delaware
    4. District of Columbia
    5. Hawaii
    6. Illinois
    7. Louisiana
    8. Maryland
    9. Massachusetts
    10. Nevada
    11. New Jersey
    12. New Mexico
    13. Oregon
    14. Pennsylvania
    15. Rhode Island
    16. Virginia
    17. Washington
  • *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.

    Updated guidance released by the Texas Education Agency on Sept. 17 states that per the governor’s executive order, school systems “cannot require students or staff to wear a mask.”

    Updated 9/21/2021 | Sources: Local media reports | Learn more here

Texas Attorney General Ken Paxton has fought to preserve Abbott’s ban, arguing that the governor’s emergency powers under a declared disaster give his executive orders the “force and effect” of state law — superseding local rules and regulations.

Abbott’s executive order prohibited local governments from implementing mask mandates and set, citing a provision in the Texas Disaster Act, a $1,000 fine for governments or officials that fail to comply with the edict. The law and the executive order are unclear whether the fine accrues daily or is a one-time penalty.

Facing a surge in COVID-19 infections, several counties and school districts turned to the state District Courts for help, winning temporary restraining orders in Travis, Harris, Dallas and Bexar counties that allowed mask mandates, particularly in schools, where children under 12 are not eligible for a COVID-19 vaccination.

Paxton asked the Texas Supreme Court to overturn the restraining orders and declare local mask mandates illegal. In its latest action Thursday evening, however, the Supreme Court refused, sending Paxton’s challenge to a lower appellate court while allowing a handful of restraining orders to remain in force, including one that applied to all school districts statewide.

Abbott also has been sued in Austin federal court by 14 children with disabilities and health conditions who say his ban on mask mandates violates the Americans with Disabilities Act by preventing their safe return to school amid a worsening COVID-19 outbreak.

According to Paxton, 50 school districts and eight cities and counties have imposed mask mandates in defiance of Abbott’s order — including the Austin, Del Valle, Eanes, Leander, Manor, Pflugerville, Round Rock, San Marcos districts in Central Texas.

President Joe Biden has directed the U.S. Education Department to push back against Republican governors like Abbott who have blocked mandatory masks in schools, including taking legal action if warranted.

“Unfortunately, as you’ve seen throughout this pandemic, some politicians are trying to turn public safety measures — that is, children wearing masks in school — into political disputes for their own political gain,” Biden said Wednesday from the White House.

In its updated guidance, the TEA also broadened notification requirements for schools when a positive COVID-19 test is reported.

Consistent with other requirements for communicable diseases and confidentiality, the guidance says, “schools must notify all teachers, staff, and families of all students in a classroom or extracurricular or after-school program cohort if a test-confirmed COVID-19 case is identified among students, teachers or staff who participated in those classrooms or cohorts.”

Previously, the TEA had said schools only needed to notify people and parents of students considered close contacts. The TEA’s guidance still says parents of students considered close contacts, as defined by the Centers for Disease Control and Prevention, can choose to send their kids to school.

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

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