In Texas, a federally authorized organization filed a federal lawsuit to block Governor Greg Abbott’s ban on masking mandates. Abbott has repeatedly said that the decision to wear a mask should be made by parents, not by school boards.
CONTACT:
Edie Surtees, Communications Director
esurtees@drtx.org
512-407-2739
First Federal Lawsuit Challenging Mask Mandate Ban Filed Against Texas Governor and TEA Commissioner Says It Violates ADA, Section 504
AUSTIN—Today, Disability Rights Texas, the federally mandated protection and advocacy agency for Texans with disabilities, and pro bono partners Winston & Strawn LLP filed a federal lawsuit on behalf of 14 child plaintiffs against Texas Governor Greg Abbott and Texas Education Agency Commissioner Mike Morath.
The complaint states that the Governor’s Executive Order GA-38 prohibiting school districts and charter schools from implementing mask mandates is putting students with disabilities at significant risk, is discriminatory, and violates the federal Americans with Disabilities Act and Section 504 of the federal Rehabilitation Act.
The COVID-19 pandemic has dramatically affected students with disabilities, beginning with the closure of the public school system in the spring of 2020. These students lost critical instruction and services, continuing into the 2020-21 school year. Now, the Delta variant and a surge in cases is threating this school year. Students with disabilities need in-person schooling more than other student groups, but they must be able to receive instruction and services safely. Many of these students have underlying health conditions and are at high risk for illness and even death due to COVID-19.
One of the student plaintiffs, J.R., lives in Bexar County and attends San Antonio ISD. J.R. is eight years old and lives with attention deficit hyperactivity disorder, a growth hormone deficiency, and moderate to severe asthma. Her mother, Julia Longoria, doesn’t get much sleep right now because of the very real worry that her daughter, who needs in-person instruction to succeed in school, is at greater risk of serious illness, hospitalization and even death if she gets the virus. This is a very real possibility if schools are open at full capacity, with optional masking and the current level of community spread. “Having to make a choice between my daughter’s education or her life – what kind of choice is that?” said Ms. Longoria. “My child has the right to an education and to be safe at school. I shouldn’t have to choose.”
This is the first federal lawsuit to challenge the Governor’s Executive Order. The complaint explains how the order is a barrier to public schools for students with disabilities and that no family should be forced to choose between health and their child’s education. It also states that Texas needs to follow the recommendations of public health officials to include the mandated use of masks in areas with significant exposure.
“Under Gov. Abbott’s order, parents of these children face an untenable choice: educate their children at school and expose them to potential severe illness, long COVID, and even death or keep their children home, where they will receive a fraction of their education in one of the least integrated settings available with limited to no exposure to non-disabled peers,” said Tom Melsheimer, attorney from Winston & Strawn. “Either outcome is a violation of students’ rights under the ADA and Section 504, and both are wholly avoidable.”
The lawsuit asks for a temporary restraining order that requires Governor Abbott, TEA, and the districts named to cease violation of the Americans with Disabilities Act and Section 504 and allows local school districts and local public health authorities to require masks for its students and staff as they determine is necessary.
Read the full complaint attached below.
ADDITIONAL STATEMENT ADDED AUGUST 18, 2021:
The case filed on August 17, 2021, has been assigned to U.S. District Court Judge Lee Yeakel. Today, Plaintiffs filed a request for a temporary restraining order and preliminary injunction enjoining Defendants from prohibiting local school districts from requiring masks for their students and staff. The full motion is attached below along with the original complaint.
The filing includes sworn statements from the parents of the young plaintiffs with disabilities about their health conditions and risks. It also includes compelling declarations from two medical experts explaining the harm posed to children with serious health conditions in schools not allowed to implement mask mandates with the exploding spread of the Delta variant.
The brief explains that plaintiffs will prevail because it violates federal disability laws to exclude them from school or make them risk their lives to get an education.
Plaintiffs also argue they will succeed because the Governor’s order violates the American Rescue Plan Act of 2021, in which Texas districts received over $11 billion dollars in funding so that they can adopt plans for a safe return to in-person instruction.
“The injunction is required to protect the lives of children with disabilities and their basic right to attend school,” said Dustin Rynders, Supervising Attorney with Disability Rights Texas.
# # #
Disability Rights Texas is the federally designated legal protection and advocacy agency (P&A) for people with disabilities in Texas established in 1977. Its mission is to help people with disabilities understand and exercise their rights under the law, ensuring their full and equal participation in society. Visit www.DRTx.org for more information.
Diane Ravitch's blog 
So great how the ed reform lobby are using the masking bans to sell private school vouchers.
Not about PUBLIC school students. Never was. Public school students are just a lever they use to promote their ideological “reimaging” and set up a private market.
Here’s one of the tens of fawningly pro-voucher articles the echo chamber churn out weekly. This is from an ed reform group aflliated with Harvard, but it doesn’t matter which one it is – they’re all the same. Reliably anti-public school and reliable, lockstep cheerleaders for vouchers and charters,.
https://www.educationnext.org/when-choice-really-works-it-lifts-up-everyone-indiana-robert-behning/
Public school students are an afterthought. They’re barely mentioned, and ONLY mentioned in the context of how continuing to permit public schools to exist might impact charters and vouchers.
Look in your own state. Review what the lawmakers in your state who are identify as “ed reformers” have actually accomplished on behalf of any student who attends a public school. They contribute nothing to our schools, yet they’re regularly employed by public schools as consultants and they regularly mandate public school policy.
Shouldn’t public school students have adults who actually value public schools and public school students directing what goes on in their schools?
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“BREAKING: Florida Education Commissioner Richard Corcoran says the state will withhold state funds from Broward and Alachua public schools, targeting school officials compensation, as a result of them violating Gov. Ron DeSantis’ mask orders.”
Yes, Florida is definitely the national model for public education.
Notice how no one in ed reform speaks up while these governors attack public schools. Jeb Bush is probably pretty influential in Florida. He writes a scathing editorial a week bashing public schools so I know he’s capable of speech. Silent.
The ed reform echo chamber are not permitted to criticize fellow echo chamber members. They’ll all sit on their hands as this ridiculous, damaging and wholly political fight is conducted inside public schools.
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I know how to get the attention of the ed reform echo chamber to these public schools- tell them labor unions are disallowing masks. The whole gang would be up in arms.
But because their political allies in the ed reform project are cynically attacking public schools and using public school students as pawns, we don’t hear a word.
There are thousands of paid ed reform advocates and tens of ed reform orgs. Not one of them will defend public school students?
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Yes, it’s all a very cynical and calculated ploy by Abbott, DeSantis, and the other vomit inducing GOPers to throw red meat at their rabid voting base. The health of the children and school staff be damned.
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I’ll just leave this here and see if anyone’s head explodes.
https://nymag.com/intelligencer/2021/08/the-science-of-masking-kids-at-school-remains-uncertain.html
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I will quote from an apt comment on the link above:
“Worth reading: Delta is Bad News for Kids, by Katherine J. Wu in The Atlantic
She reports that in the last week of July, there were 72,000 new cases reported in kids. In the first week of August, it went up to almost 94,000.”
“Uncertain” means that we take precautions. You do realize that pediatric ICUs are overfull in COVID hotspots, right?
Most of us 50 and older grew up without riding in car seats or even having to buckle our seat belts. We actually sat in the front seat without seat belts as 4 year olds. I didn’t know of a single child under 13 in my entire school district who was killed riding in a car.
In 1974, a total of 1,384 children under 13 died in car crashes in the entire US.
Car seats and seat belts are too restraining, some parents whine. Let my toddler be free. The statistics “prove” that it is highly unlikely their child will die even if he isn’t restrained. Only in the unlucky event the car happens to be in an accident and the child happens to be in the wrong place will the child die.
Sounds like what parents say about COVID. My child is very unlikely to die from not wearing a mask, and that’s the bottom line.
That’s what some religious Jews say when they spurn vaccines in their community. Their child is very unlikely to die so why do their children need vaccines?
Maybe you agree with that argument. If the entire argument is simply that children are “unlikely to die”, then there are a lot of things you probably find unnecessary.
And whether masking helps even a little? Of course it helps – when you find a hospital where no medical professionals wear masks in contagious wards, let me know.
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Hi, Flerp. Here’s my analysis of the link.
The study linked by the Intelligencer article was published 5/21/21. It is based on data from Georgia schools collected between opening of school in Fall 2020 through December 2020. At that point in the US, the dominant covid strain was the ‘original,’ with various “B” mutations rising in other parts of the world (showing up here by Jan 2021).
Delta variant began rapid spread here, changing the case count trend, in June [by end-July, Delta represented 80% of US infections]. On 6/17/21 the UK (whose Delta spread was ahead of ours) issued a study showing that children and adults under 50yo are 2.5x as likely to become infected with Delta. At the end of July, CDC reported (based on studying the Provincetown case cohort) that Delta is transmissible by the fully vaccinated to both vaccinated and unvaccinated alike [3/4 of the 470 Provincetown infections occurred in fully vaccinated people). As Yale Medicine & other medical media have been stating for the last few weeks, this means emphasis must once again be put on prevention via layered protection: vaccine, masks, distancing, ventilation.
The May Intelligencer article rests much of its position on consensus of various countries, and WHO, on mask guidance – meanwhile, WHO and several of those countries changed to recommend mask-wearing by the vaccinated as well as unvaccinated, in outdoor crowds and indoor where social distancing is not possible [that would be schools]– in August [even before the CDC did likewise].
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bethree5,
Thank you for this well-researched reply. If I had read it earlier, I would not have posted my own (far inferior) reply.
I was so thrilled when it seemed like vaccinated people (and teens) could go without masks, but that was before the Delta variant.
There is no “perfect” response to a pandemic. A “perfect” response is constantly adjusting to react intelligently as new information and problems arise to minimize whatever new problems arise.
The difference between Trump and Biden’s response to the pandemic: Trump decides on a response and refuses to make any adjustments to deal with the growing danger and exacerbates the damage. Biden decides on a response and then continues to make adjustments to that first response as conditions change to address the problem.
No plan can ever be “perfect”. The difference between a competent president and an incompetent one is that an incompetent president will make no changes to the plan to address unforeseen problems that always arise. And a competent president will.
The difference between an incompetent journalist and a competent journalist is that an incompetent journalist will accuse a president who reacts to address problems that arise by characterizing that president as “incompetent” for not coming up with a perfect plan.
No one can perfectly foresee the future. But they can react to the future that occurs that minimizes harm, instead of continuing on the same path with no changes.
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So true, nycpsp, and now we have to deal not with Biden vs Trump, but Biden vs the many Trump mini-me’s trying to outdo each other in over-the-top, über-Trumpy postures– “Look at me!” “No, look at ME, I’m an even bigger anti-public-good panderer to the lowest common denominator! [thumps chest]”
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The craziness is everywhere including good old NJ, from the Middletown Patch: MIDDLETOWN, NJ — The Middletown Board of Education is considering adopting policy that will prohibit teachers in that school district from discussing coronavirus vaccines or vaccine status with their students. Board member Jackie Tobacco said she came up with the language with fellow board member Frank Capone and the school district’s attorney, Bruce Padula.
This is meant to prohibit teachers from influencing their students in any way to be vaccinated or not for COVID-19, now that the Pfizer and Moderna shots are approved for those older than 12. It would also prevent a teacher from knowing or discussing a student’s COVID-19 vaccination status.
“We are not going to allow staff to encourage or discuss vaccines with our students,” said board president Joan Minnuies at the Wednesday night board meeting. “We will put on the web page where vaccines are available if people want them, but we do not want them discussed with our students.”
The policy is already written, and the board will vote on this at its meeting Tuesday. end quote
https://patch.com/new-jersey/middletown-nj/middletown-boe-may-prohibit-teachers-discussing-covid-vaccine
Totally bizarre and nuts. Sounds like the school board from hell.
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That is, as you put it, Joe Jersey, “totally bizarre and nuts.”
Tragic for the students and staff.
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In Utah, we cannot even encourage mask wearing and we have just been told that if a student makes a false statement about something that is not part of our curriculum, we cannot correct the falsehood. The example given was that if a student says the earth is flat, only geography teachers in geography classes can correct that falsehood.
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I have a couple things to say, just saying, a couple of things. They’re off topic, sorry. Number one: CEOs make 351 times more than workers, up from 15 times in 1965. https://www.theguardian.com/commentisfree/2021/aug/17/american-chief-executive-pay-wages-workers Number two:,Michelle Rhee is a son of a Rhee. Just saying.
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One of the things focusing on the mask issue does is to root out the discussion of possible therapies for those who have the disease. I know it is hard to fight viruses in general, but one would think more attention to be paid to therapeutic behaviors and drugs that might stave off the harshest attacks once a person has the virus. The lack of discussion of this seems odd to me.
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Do you mean the lack of discussion in the media? The mainstream media may not report on it, but certainly in the medical/science journals there is discussion about what kinds of therapies work. I don’t think the lack of discussion among laymen has any impact on all the efforts being made to figure out what therapies work. And I would say this is a worldwide effort, with scientists and researchers all over trying to pool their information.
The problem is that there is no magic bullet, the way penicillin could cure strep throat. The Regeneron monoclonal antibody infusions seem promising, but they come with a big catch-22. That treatment seems to work best when given to people with mild symptoms, but it is cumbersome enough that clearly everyone who tests positive can’t be infused. Right now, it seems the privileged get first dibs, and that’s the kind of reporting I would like to see — who is actually being served at these infusion centers, and is it mainly affluent white people?
But I do think lots of people in the medical field are paying attention to therapeutic drugs and what does and might work. And looking for some treatment that can be given in a pill instead of infused.
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