With four pending state lawsuits and one federal lawsuit against the Governor, TEA has just issued revised Health Guidance. Previous guidance required neither contact tracing, nor notification of parents if a student or teacher in their child’s classroom tested positive for COVID-19. Under the revised guidance, “Consistent with school notification requirements for other communicable diseases, and consistent with legal
confidentiality requirements, 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.”
Additionally, yesterday afternoon TEA has revised the guidance with respect to masks, stating, “Please note, mask provisions of GA-38 are not being enforced as the result of ongoing litigation. Further guidance will be made available after the court issues are resolved.”
While the Governor’s Executive Order remains in place, TEA has said they will not enforce it. This would permit school boards and administrators to comply with any local mask requirements issued by Local Health Authorities, or to determine the need for masks in their schools as warranted by local conditions.
Confusion continues to reign statewide regarding the authority of local county health departments and school districts attempting to respond to the COVID-19 pandemic in light of the transmissibility of the delta variant. Across the state, county judges have imposed mask
mandates applicable to school districts and school districts and counties have obtained Temporary Restraining Orders against the Governor’s implementation of Executive Order GA-38, which stripped authority from any local entity with respect to imposition of a mask mandate.
There are three general legal principles in play in these cases:
- State law grants the Governor broad authority to respond to emergency conditions, including the authority to suspend state law for a 30-day period;
- State law grants local public health authorities certain powers to respond to local public health emergencies; and
- The federal government has allocated funding to public schools for purposes of implementing safe school guidance, including guidance from the Centers for Disease Control
As of this writing, the status of pending litigation is as follows:
Bexar County- On August 10, 2021, the County Judge issued Executive Order NW-21, which required schools to follow mask requirements imposed by the City of San Antonio and Bexar County. The city sought an injunction from a district court in Bexar
County against imposition of GA-38, which issued the injunction. The state filed a Writ of Mandamus, which was denied at the appeals court. The Texas Supreme Court issued a stay of the temporary order on August 15, 2021. The stay will effectively expire August 23, when the District Court is scheduled to hear evidence on the application for temporary injunction. That order could be subject to a second appeal by either party.
Dallas County- On August 12, the County Judge issued an Order requiring face masks in public places, including K-12 schools. Similar procedural history. The Texas Attorney General filed a Writ of Mandamus, seeking a
ruling that the district judge abused his discretion in issuing the temporary restraining order. The appeals court denied the Writ. The Texas Supreme Court stayed the ruling on
August 15, 2021. On August 16, the County Judge issued an Amended Order, which requires Pre-K-12 schools in Dallas County to develop a health and safety policy. The Health and Safety Policy must require, at a minimum, “universal indoor masking for all teachers, staff, students, and visitors to childcare centers and pre-K-12 schools, regardless of vaccination status, except for children under 2 years of age.” The Health and Safety Policy required to be developed and implemented by the
Executive Order may also include implementation of other mitigating measures recommended by the CDC to control and reduce the transmission of COVID-19, such as maintaining at least 3 feet of physical distance between students within classrooms. The stay will effectively expire August 24, when the District Court is scheduled to hear evidence on the application for temporary injunction. That order could be subject to a second appeal by either party.
Travis County- Travis County issued County Judge Order 2021-08 on August 11, 2021, which required face covering while on school property or school buses. The order permits a principal, responsible staff or administrator to determine when it is not appropriate to require a face covering. Compliance with the Order is reliant on, “self-regulation and a community commitment to public
health and safety under the threat of COVID-19.” On August 13th, Travis county issued County Judge Order 2021-08a to update the definition of schools, to include public colleges
in Travis County. As with the first, enforcement is based upon moral suasion. The Texas Attorney General attempted to include Travis County in the cases before the Texas Supreme Court, however, the Court declined to include Travis County in the stay orders issued in the cases involving Harris County, The Southern Center for Child Poverty and the Valley School Districts. The case was then appealed independently, and on August 19, the Supreme Court declined to stay the order, due to the fact that the Court of Appeals had not yet ruled on the matter. As of today the Travis County
Order still stands.
Harris County, The Southern Center for Child Poverty, and the Valley School Districts- In three separate cases, these plaintiffs filed declaratory judgment actions arguing the Governor exceeded his authority
under the Texas Disaster Act. The District Court judge issued injunctions prohibiting the Governor from enforcing EO-38. The Texas Attorney General filed a Writ of Mandamus, which was denied by the Court of Appeals. On appeal, the Texas Supreme Court issued a stay of the District Court judge’s orders for Harris County, however, it does not appear that the Supreme Court has blocked the Temporary Injunction issued in the case involving the Southern Center for Child Poverty. The injunction issued in the Southern Center case applies state-wide. It is anticipated it will be blocked. The effect is to block the Executive Order.
United States Department of Education- On August 13th, the U.S. Secretary of Education sent a letter to Texas Education Commissioner Mike Morath regarding the state prohibition of mandatory masks in schools and expressed concern regarding the TEA Health Guidance that contact tracing is not
required. “The Department also emphasizes that it is within an LEA’s discretion to use ARP ESSER funds for contact tracing, implementing indoor masking policies, or other policies aligned with CDC guidance. Section 2001(e)(2)(Q) of the ARP Act explicitly gives LEAs the authority to use ARP ESSER funds (as well as ESSER funds granted through prior relief funding) for “developing strategies and implementing public health protocols including, to the greatest extent practicable, policies in
line with guidance from the Centers for Disease Control and Prevention for the reopening and operation of school facilities to effectively maintain the health and safety of students, educators, and other staff.”
Dress Codes- Paris ISD amended their dress code to include masks. The Executive order does not explicitly remove the authority of public school districts to establish dress and grooming standards for
their students, but it does contain broad language, suspending, “Any other statute invoked by any local governmental entity or official in support of a face-covering requirement.” To date, there has been no challenge.
Disability Rights Lawsuit-On August 17, Disability Rights filed a federal lawsuit against the Governor of Texas and the Commissioner of Education seeking injunctive relief. Plaintiffs include children
with disabilities who are precluded from safely attending school, due to the imposition of EO-38 and the mask prohibition. Among the claims in the lawsuit are claims the Elementary and Secondary School Emergency Relief Act (ESSER) requires LEAs to plan for the safe return of students to in-person learning consistent with CDC Guidelines, which include universal masking. Additionally, the lawsuit alleges violation of the Americans with Disabilities Act and Section 504 in that the
prohibition on masking denies students with immune deficiencies and other underlying conditions the ability to safely attend public school. There has been no hearing to date on the request for the injunction.
Who’s on First? Guidance from the courts and regulatory authorities is highly fluid and frequently changing. We will continue to monitor and update our clients as these matters develop. In
the absence of clear guidance on masks, we rely on experience to encourage school officials to make their policy decisions informed with the safety and wellbeing of children in mind, and to continue to allow administrative flexibility to respond to a fluid and rapidly-changing public health landscape.
Authors: Sara Leon and Hans Graff
