New TEA guidance on masks stirs the legal pot on mask mandates and spurs a federal investigation

Masked woman driver stands in the aisle of a school bus.
See Texas AFT’s COVID-19 Resource Page for info on how to take action and stay safe.

The U.S. Department of Education is launching an investigation of Gov. Greg Abbott’s order prohibiting mask mandates, which federal officials said could break federal law and discriminate against students with disabilities. The USDOE has launched similar probes in four other states with actions by governors prohibiting mask mandates in school districts.

Federal law requires that students with disabilities are protected from discrimination and are guaranteed the right to receive education in a regular educational environment to the maximum extent appropriate to their needs, and disabilities include students with underlying health conditions that put them at high risk with COVID-19. A letter from USDOE to TEA stated the investigation would look into whether Abbott’s order “may be preventing school districts in the state from considering or meeting the needs of students with disabilities” and the need to ensure that Texas provides “an equal educational opportunity to students with disabilities who are at heightened risk of severe illness from COVID-19.” 

In addition to a widespread revolt, with many districts defying the governor’s order and requiring masks and some suing in state courts, the nonprofit Disability Rights Texas also has filed a federal lawsuit against Abbott and TEA Commissioner Mike Morath on the basis that their actions and orders discriminate against disabled students. Attorney General Ken Paxton has pushed back, vowing to sue every school district that defies the governor’s order, and he has filed lawsuits against a handful of school districts already.

That aggressive action by Paxton and new TEA guidance/rules spurred the USDOE to take action and launch its investigation. TEA’s public health guidance/rules on September 1 noted: “mask provisions of [the governor’s order] are not being enforced as the result of ongoing litigation.” The updated document for September 17 reads: “school systems cannot require students or staff to wear a mask.”

“TEA has entered the fray with its newest rules,” said Texas AFT President Zeph Capo. “TEA is now solidly on board with the governor’s dangerous edict. On the other hand, our members and educators across the state have stood solidly with our campaign urging districts to use whatever safety measures are necessary—including mask mandates—to keep their communities safe. The governor’s order has a significant impact on disabled students with health risks, and we are encouraged that the federal government is stepping in to stand up for their rights.”

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