Texas’ ban on school mask mandates draws federal investigation for possibly violating the rights of students with disabilities

On April 6, 2020, the state started reporting the number of patients with positive tests who are hospitalized. The average number of hospitalizations reported over the past seven days shows how the situation has changed over time by de-emphasizing daily swings.

Note: From July 23 to July 28, 2020, between 9% and 18% of hospitals reported incomplete hospitalization numbers due to changes in reporting to meet federal requirements.
Source: Texas Department of State Health Services
Credit: The Texas Tribune

The education department has launched similar investigations in Iowa, Oklahoma, South Carolina, Tennessee and Utah. It had not done so in Texas because the TEA was previously not enforcing the governor’s order while there was ongoing litigation.

Disability Rights Texas, an advocacy group, filed a federal lawsuit in late August against Abbott and Morath. The group, which filed the lawsuit on behalf of 14 children, says that the governor’s order and the TEA’s enforcement of it deny children with disabilities access to public education as they are at high risk of illness and death from the virus.

The group claims that because of this, the state is violating the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, which forbids organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. The lawsuit has not yet been resolved.

The TEA’s guidance released Friday is the latest development in an ongoing war over coronavirus precautions that has left school officials and parents with whiplash about what requirements are — or aren’t — in place.

In early August, the agency had said districts couldn’t mandate masks because of the governor’s order. But as the new school year approached, a surge of coronavirus infections and hospitalizations prompted some local officials to buck Abbott’s prohibition in order to protect teachers and schoolchildren. Coronavirus vaccines still aren’t approved for children younger than 12.

About a month into this school year, the number of reported coronavirus cases among students is approaching the total from the entire 2020-21 school year. State data on school cases is incomplete and likely an undercount. TEA suppresses some districts’ case counts to protect student privacy, and not all districts report student and staff cases to the state despite agency guidance requiring otherwise.

School districts, cities, and counties have fought Abbott’s order in court, and some have won temporary restraining orders allowing them to require face coverings. Meanwhile, Attorney General Ken Paxton has sued several school districts he says have mask mandates, making good on the state’s threat of coming after districts that defied the governor.

Those lawsuits aren’t all yet resolved and some have so far played out in different ways. That’s created even more confusion as a patchwork of differing local rules has popped up throughout the state.

Shannon Holmes, executive director of the Association of Texas Professional Educators, said in a statement that school districts should be free to make their own decisions to protect students and staff and that includes “protecting groups of high-risk students so as to provide the free appropriate public education required under federal law.”

The Texas Tribune reached out to Houston, Dallas, Fort Worth, Austin, and Round Rock school districts for comment as well as the Texas State Teachers Association and the Texas Association of School Administrators. None immediately responded.

Raise Your Hand Texas, a public school advocacy group declined to comment.

This story originally published by the Texas Tribune.