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School mask mandate – what’s the current state of the law?

By Luke Ellis, September 3, 2021, Columns

I'm super confused. I know that AISD has a mask mandate. But I also know that Governor Abbott doesn't want masks. And I know there's been a ton of courtroom battles in recent weeks over who gets to decide. But I honestly have no idea of the current state of things. Are masks still required in Austin schools? Is the Governor's no-mask rule still in place?

Yes and yes. You are correct – all of it can be confusing. The situation is fluid with courts at all levels across Texas issuing conflicting rulings in the past month. Here's a short summary of the August events and where things stand as of now, the end of August 2021.

Governor Abbott previously issued an executive order (Executive Order GA-36) that ended the statewide mask mandate. The order expressly prohibits local governments from requiring a person to wear a mask ("No governmental entity, including a county, city, school district, public health authority, and no governmental official may require any person to wear a face covering"). The order extends to public schools, where at present, "no student, teacher, parent, or other staff member or visitor may be required to wear a face covering."

Many counties, cities, and independent school districts (ISDs) have either openly challenged the order or ignored it altogether, effectively continuing with school mask mandates. Ken Paxton, the State's Attorney General, published a list of more than fifty local governmental entities that he argues are not complying with the Governor's order. The fundamental issue is which government officials – the Governor or local-elected officials – should have the legal ability to decide what the government's position should be on school mask mandates.

Dallas and Bexar Counties took the lead in challenging the Governor's order by filing a temporary restraining order, which essentially asked local district court judges to allow the county and independent school district (ISD) to enforce the mask mandate on a temporary basis pending future proceedings on the merits. The district court judges ruled in favor of the local governments and allowed the school mask mandates while interim litigation over the issue ensued. Austin/Travis County filed a similar lawsuit and got a similar ruling from a local Travis County district court.

Paxton's office has appealed some of these rulings to the Texas Supreme Court, the highest civil court in Texas, where all nine justices are Republican. After addressing some procedural irregularities, the Supreme Court ultimately ruled against the local governments. The Supreme Court held that the "status quo" of allowing the Governor to prohibit mask mandates will continue while the lower courts address the issue on the merits.

The City of Austin and Travis County, which were not party litigants to the Texas Supreme Court case, continue to order masks be worn in public buildings and schools so AISD continues to enforce the mask mandate. Travis County Judge Andy Brown recently stated "[u]ntil we end up in litigation directly with the governor, we're going to keep our requirement that public schools require masks in place."

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