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'Legal tug of war': Here's how Austin-area schools continue to push back on Abbott's masking ban

(Austin ISD)

Despite Gov. Greg Abbott's best efforts, 52 school districts and counties across the state, including several in the Austin area, have defied the governor's order and employed mask mandates in time for the 2021 school year.


Some districts, including Travis County's Eanes ISD, reversed their mandate after the Texas Supreme Court upheld Abbott's ban on local mask mandates in Dallas and Bexar counties on Aug. 15. But the Supreme Court appeared to change course as it sided with a Travis County judges' temporary restraining orders against Abbott's ban on Thursday, albeit only on a technicality.

The Texas Education Agency retaliated Thursday night as well and said they would not enforce Abbott's ban on any districts. Over the weekend, Austin ISD upped its safety protocols even further, announcing it would limit football games to 25% capacity for the second year in a row, while Round Rock ISD's superintendent said they could be tweaking their opt-out masking provisions as pediatric cases continue to rise.

The ping-pong game of a legal battle has left many parents, residents and even local officials confused on what authority has the power to enforce mask mandates as the highly contagious Delta variant continues to raise concerns for students, many of whom don't yet qualify for vaccination.

Here's how Austin-area schools are able to keep mask mandates despite the efforts of the state:

The argument

Governor Greg Abbott reversed his statewide mask mandate in March, effectively banning mask enforcements in all Texas cities and school districts. Since then, Abbott and Attorney General Ken Paxton, among other GOP lawmakers, have upheld a "personal choice mantra" when it comes to masking up.

Abbott's executive order leans on the Texas Disaster Act, which he says gives him the power to decide how to respond to statewide emergency situations. The clause says that Abbott can declare a "state of disaster" for a number of natural and man-made events, including an epidemic.

Sec. 418.02 of the mandate allows Abbott to "issue executive orders, proclamations, and regulations and amend or rescind them. Executive orders, proclamations, and regulations have the force and effect of law."

Under that clause, Abbott has both added and rescinded it's statewide mask mandate and enforced other safety measures including closing bars and limiting capacity,

But many school districts and cities say the clause doesn't give Abbott that breadth of power.


Cities, districts push back

Seven school districts and cities have pushed lawsuits against the ban, with dozens more choosing to implement their own version of mask enforcement. Travis County and Austin ISD were among the first to make a move, joining Dallas and Bexar counties in employing mandates in their schools.

Dallas struck first with the most comprehensive mandate in the state, requiring masks on Dallas ISD properties as well as Dallas County businesses, while Bexar maintained pre-K-12 public schools and city facilities.

Austin soon followed suit. On Thursday, Aug. 12, the city mandated masking for residents over the age of 2 on city and county property, including public schools.

Travis County Judge Andy Brown said the decision would help protect kids under 12 who are still unable to get vaccinated, resulting in an increase in pediatric cases countywide.

"The order I signed today will protect countless lives and keep our community safe by requiring masks in public schools and county buildings," Brown said. "Our community faces the largest COVID-19 surge since the start of the pandemic."

Harris County joined other Texas metros in enforcing the ban days later, with a county judge siding with the county's restraining order. Soon 48 other districts across Texas defied Abbott's order as well. Paris ISD, a small district in northeast Austin, added masks to their dress code as a way to work around the ban.

Local courts, Supreme Court rulings clash

The moves didn't go unchallenged, however. On Sunday, August 15, the Texas Supreme Court sided with Abbott, striking down restraining orders in both Dallas and Bexar counties

Both counties were undeterred, however, and kept their mandate with few amendments. A hearing by a local judge in San Antonio the following day sided with the city in the ruling, and Dallas County Judge Clay Jenkins was immoved by the verdict.

"For us this is not a battle over politics. This is about human beings versus the virus. And we're standing with our local hospitals and school superintendents to protect human life," Jenkins said.

On Thursday night, the Texas Supreme Court reversed course in allowing Travis County to uphold its mask mandate, though only on a technicality: because Abbott's appeal skipped a hearing in lower courts before reaching the Supreme Court, the court was not allowed to make a decision. On the same day, the TEA stopped enforcing Abbott's mandate in public schools as well.

The ruling was a victory for Austin ISD, who joined some South Texas schools and Harris County ISD in newfound immunity. But it's likely only temporary: Attorney General Ken Paxton said the office would continue to sue districts that violate Abbott's order, and the state will likely attempt to fine or defund schools that refuse to comply.

"Over 50 Texas government entities have mandated masks in violation of law," Paxton said on Twitter. "I'm fighting all of it... this is plainly illegal & contrary to Abbott's GA-38. So once again, I'm suing."

Travis County districts react

Several Austin-area districts have enforced mask mandates, while others have changed course after receiving pushback. Here's the latest on each district:

Austin ISD is still staunch in their mask mandate and is looking for more restrictions to ensure safety after students returned to campus Tuesday. The district is the largest in the area to allow virtual learning this year alongside nearby districts Round Rock, Leander, Pflugerville and Del Valle and has over 4,000 enrolled, some of which aren't even in the district themselves but are looking for a safer option. The school district will once again enforce contact tracing, meaning any student that comes into contact with someone infected with COVID will need to quarantine for 10-14 days. In addition, Austin ISD football games will once again be conducted at 25% capacity.

Round Rock ISD is implementing an opt-in style of masking, though that could be subject to change-the superintendent has asked the school board to edit its mandate to allow students to opt-out only for health or developmental circumstances.

Eanes ISD- in a roller coaster of events, Travis County's Eanes ISD enforced masks, reversed course and enforced them once again after parent protests and a teacher altercation made the district a political battleground. The district reported Friday that a parent ripped a mask off of a teacher at a meet-the-teacher event and another was yelled at.

Pflugerville, which also has a temporary restraining order against Abbott's ban, implemented a mask mandate within schools and city properties over the weekend.

Leander ISD- Despite protests from some parents, Leander ISD decided to uphold its mandate on Wednesday as cases in the area continue to climb.

Hays CISD, Hays County's largest district, hasn't employed any mask mandates, though many are fighting for that to change. Hays County Judge Ruben Becerra has upheld a temporary restraining order against Abbott's ban, but the district superintendent has not yet upped COVID restrictions. A school board meeting at 5:30 p.m. on Tuesday will likely become heated as they look to find a solution.

Del Valle ISD, Manor ISD, Dripping Springs ISD, San Marcos CISD and Travis County United ISD have also enforced similar mask requirements.


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