Dueling bills filed in school mask fight
GOP lawmaker seeks to codify governor’s ban on mandates; Dems want districts to decide
Staff Writer

The question of whether Texas’ executive branch can ban school mask mandates is tied up in the judicial branch and could soon be hashed out in the legislative branch.

Lawmakers have filed bills in their second special session that would codify Gov. Greg Abbott’s executive order prohibiting district leaders from requiring face coverings. And they’ve also filed bills that would empower local trustees to set their own policies on masks.

The fight over masks that has consumed state government is playing out while millions of public school students head back to school amid swiftly changing safety protocols, as the delta variant drives up COVID-19 cases.

The Centers for Disease Control and Prevention recommends universal masking inside schools, regardless of vaccination status. More than half of Texas public school students aren’t yet eligible for the coronavirus shot.

Several school districts — including Dallas and Richardson — continue to require masks, while many others have kept them optional. Some districts have flip-flopped as the court battles over Abbott’s order drag on.

“This back-and-forth is just disruptive to the operations of school,” Richardson Superintendent Jeannie Stone said last week. “I’m going to remain hopeful that the local context, the local decisions will be left to the superintendents based on data, based on input from health authorities in our community.”

Abbott listed ensuring that “the wearing of face coverings is not mandatory” in public schools on his call for the special session.

Rep. Jeff Leach, R-Plano, introduced a bill to establish that students in kindergarten through 12th grade “may not be required to wear a face mask or face covering as a condition of the student’s admission to, continued enrollment in, or attendance at any public school in this state.”

It’s scheduled for a hearing in the public education committee Aug. 30. He did not immediately return a request for comment.

Rep. Harold Dutton, D-Houston, the chair of the public education committee, meanwhile, filed legislation that allows a district’s board of trustees to “require an individual to wear a face mask, face shield, or other face covering to reduce the spread of infectious, contagious, and communicable diseases” in schools. It’s also set for an Aug. 30 hearing.

“A better solution to all of this is to let local communities make their own choices as to whether or not there ought to be a mask mandate,” he said. “When you look at the historical context and the way this committee has done things in the past, we have always erred on the side of local communities making their decisions.

“I don’t see any reason we should change that now.”

Rep. Rafael Anchía, D-Dallas, is championing similar legislation.

“The goal is to make sure that a bill codifying the governor’s mandate never sees the light of day,” Anchía said. “That involves fighting it in the public education committee and then also, if it makes it to the floor, fighting it there. Finally, if need be, talking it off the end of the calendar at the end of the session.”

Such a bill, he said, “would be disastrous for our fight against COVID and would put a lot of kids, a lot of public school kids, in danger.”

In the meantime, the fight over mask mandates is largely contained to the courts.

A Dallas judge on Wednesday ruled that Abbott’s executive order violates Dallas County Judge Clay Jenkins’ ability to mitigate the COVID-19 pandemic.

Judge Tonya Parker’s decision to issue a temporary injunction will likely be appealed, first to the Fifth Court of Appeals in Dallas and later to the Texas Supreme Court, before a final decision is made in the case.

Other jurisdictions are locked into similar back-and-forths.

Disability Rights Texas also filed a federal lawsuit against the governor, alleging that his mask mandate ban violates federal anti-discrimination law that prohibits the exclusion of students with disabilities from public education.

The Texas Education Agency recently advised superintendents that Abbott’s order is “not being enforced as the result of ongoing litigation.” However, Attorney General Ken Paxton has pledged to sue the districts that defy the governor.

The DMN Education Lab is a community-funded journalism initiative, with support from The Beck Group, Bobby and Lottye Lyle, Communities Foundation of Texas, The Dallas Foundation, Dallas Regional Chamber, Deedie Rose, The Meadows Foundation, Solutions Journalism Network, Southern Methodist University and Todd A. Williams Family Foundation. The Dallas Morning News retains full editorial control of the Education Lab’s journalism.

Twitter: @talirichman