States

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

  • As of Dec. 10, four 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. Sixteen states and the District of Columbia require masks be worn in schools.

  • 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. 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.

    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.

    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. The order was later extended. The case is now awaiting a ruling from a federal appeals court.

    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

    MASKS REQUIRED


    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 Dec. 22, 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
    14. Oregon
    15. Rhode Island
    16. Virginia

    An executive order from Virginia's new governor that is set to take effect on Jan. 24 rescinds the state's current school mask mandate and instead allows parents to opt their child out of any mask mandate at their school.

    17. Washington
  • Note: In Missouri, the state attorney general has threatened to sue 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 01/17/2022| 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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