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Texas Supreme Court declines to back governor's ban of school mask mandates

Separately, the state's education oversight agency says it won't enforce Abbott's ban, will allow public schools to require face coverings.
Image: Texas Governor Abbott Signs ERCOT Reforms Legislation Into Law
Texas Governor Greg Abbott at a press conference on June 8, 2021 in Austin, Texas.Montinique Monroe / Getty Images

A ruling Thursday by the Texas Supreme Court will allow schools to continue requiring masks while a legal battle between the governor and local officials gets sorted out.

In declining to block restraining orders against Gov. Greg Abbott’s mask mandate ban, the justices remanded Attorney General Ken Paxton’s appeal to the 3rd Texas Court of Appeal in Austin for a hearing. The court did not issue an opinion for its decision.

The move came the same day that the Texas Education Agency suspended enforcement in the state’s public school systems of Abbott’s ban on mask requirements, the Texas Education Agency said Thursday.

In a public health guidance letter, the TEA said enforcement was being dropped because of ongoing court challenges to the ban. The letter said the new guidance is effective immediately and further guidance will be issued once the litigation is resolved.

In an emergency order issued last month, Abbott reaffirmed his ban on mask mandates by any government entity, although federal agencies have mandated masks in their facilities. The governor and Texas Attorney General Ken Paxton have said they would sue any entity that does not comply with the emergency order. No such lawsuit has been filed. The Texas Supreme Court had upheld the ban in a previous decision, but that did not stop dozens of entities from imposing mask mandates.

The Supreme Court ruling came in some of those cases filed in state district court in Austin. Several South Texas school districts along with the state’s most populous county won temporary legal victories on Friday as they seek to override Gov. Greg Abbott’s ban on mask mandates, which they argued is making the COVID-19 pandemic worse.

Before she granted the temporary restraining orders, state District Judge Jan Soifer said she was troubled that Abbott’s executive order was “prohibiting a requirement that the schools and the local authorities and the people who generally Texas relies on to make decisions for its citizens think are necessary.”

The TEA letter recommended public school systems consult local public health officials and legal counsel before making final decisions. It also requires districts to notify their teachers, staff members and families if a test confirms a Covid-19 case in a classroom or extracurricular activity. The state previously only recommended such notification.

The TEA guidance was issued in the wake of multiple court challenges mounted by parents, advocates for disabled children and local governments and school boards. Seven counties and 48 school districts have implemented mask mandates, despite Abbott’s ban. A state district court judge also has granted restraining orders to Harris County and several South Texas school districts that allow those entities to proceed with mask mandates. Another state district judge issued an order Thursday that allows Fort Bend County, which adjoins Harris County, to order mask-wearing in county buildings.

As of Aug. 8, the most recent total available from the Texas Department of State Health Services, 829 students and 872 staff members had tested positive for COVID-19. On Monday, the Iraan-Sheffield Independent School District in West Texas closed its schools for two weeks so students and staff could quarantine due to Covid-19.

The push for masking and social distancing came as the number of Covid-19 cases continued to soar across Texas, largely because of the highly contagious delta variant of the coronavirus. The rolling seven-day average of daily new cases in Texas was 16,000 on Tuesday, compared with 1,495 on June 30, according to Johns Hopkins University research data. Texas Covid-19 hospitalizations have reached levels not seen since late January with 12,705 hospitalized on Wednesday, state health officials reported.

As hospitals beds fill, especially in intensive care units, Abbott directed the Texas Department of State Health Services to use staffing agencies to import medical personnel from out-of-state to supplement the Covid-19 operations of Texas health care facilities. He stuck to his mask-mandate ban, nonetheless.