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Federal judge in Austin to rule on Texas's ban on mask mandates in lawsuit against governor and TEA

The lawsuit was filed by seven Texas students with disabilities. Two of the students live in Central Texas.

AUSTIN, Texas — Parents of disabled children are asking a federal judge to stop Gov. Greg Abbott's ban on mask mandates, claiming it discriminates against the students and violates their civil rights.

Disability Rights Texas represents seven students, including one from the Leander Independent School District and another one from Round Rock ISD, in the federal lawsuit against the governor.

The group said the ban prevents school leaders from offering reasonable accommodations for the disabled students.

As a result of the ban, plaintiffs' attorneys said the students have been denied access to educational programs and services because they need to wear masks for their safety.

The Texas Education Agency and its commissioner, Mike Morath, are also part of the lawsuit.

Dustin Rynders is a supervising attorney with Disability Rights Texas.   

"The Texas Education Agency put out guidance, they called it health guidance, I don't know what it should have really been called, but their health guidance said you can't have masks or mandates in public schools, and right after TEA put out that guidance, all of the districts said last year, we're getting rid of it," he said.

Disability Rights attorneys are also asking Judge Lee Yeakel to prevent the TEA and the Office of Attorney General from sharing information and enforcing the ban.

Plaintiffs' attorneys claimed the TEA has been tipping off the Attorney General’s Office of school districts that are allegedly in violation of the governor’s order.

As a result, the AG's office has sent letters to districts threatening legal action and some school officials have canceled the mask mandates. 

But Kercher said the two agencies were just sharing public information.

Defendants' attorneys used data from the Texas Department of State Health Services to show the two school districts with no mask mandates did not have significantly higher COVID-19 positivity rates.

Ryan Kersher said the positivity rates for Fort Bend ISD and Killeen ISD were just below 4% for the week of Sept. 26. Kersher said he wanted to show that masking is not making a difference when fighting the spread of COVID-19.

He also pointed out that all seven student plaintiffs stayed home last year even though there were mask mandates in place at the time.

Judge Yeakel said this case may very likely have a nationwide impact and because of that, he wanted to hear this case on its merits as a whole, fully developed and on the record, and not in bits and pieces, referencing the emergency order he denied recently in this case.

He'll issue his ruling at a later date. There is no indication when that might come.

Defendants' attorneys could not be reached for comment.    

Earlier this school year, 14 Texas children filed a lawsuit against Abbott and the Texas Education Agency over an executive order regarding masks.

Three of those children listed in the lawsuit live in Central Texas and attend Leander ISD, Hays CISD and Round Rock ISD. The other 11 are from other areas of Texas, including San Antonio, Castroville, Killeen, Galveston, Katy, Richardson, Hidalgo and Fort Bend. 

The students, who have disabilities, said the governor's order violates their civil rights under the Americans with Disabilities Act. The children, who fall under the CDC's high-risk criteria for the coronavirus, are between the ages of 7 to 11, which means they aren't eligible to get the COVID-19 vaccine. They say they cannot return to in-person classes without serious risk to their health and safety because masks are not required.

RELATED: 14 children with disabilities sue Gov. Greg Abbott, TEA due to mask mandate ban

The lawsuit states, "Excluding children from the public school classroom because of a disability is precisely the type of discrimination and segregation that the ADA and its amendments aim to prevent and specifically prohibit." 

Gov. Abbott's executive order, GA-38, bans mask mandates in public schools in Texas.

The American Rescue Plan Act of 2021 put in place by the U.S. Congress poured billions of dollars in emergency relief funding into school districts. The funds are specifically earmarked to be used to create health protocols that align with CDC guidance as much as possible. The latest CDC guidance for schools came out in early August, and they advise universal indoor masking.  

The lawsuit argues the executive order violated federal law because it goes against the CDC's guidance.

As well as Gov. Abbott, the TEA and TEA commissioner are also listed as defendants in the lawsuit because the TEA's policy says it can't mandate masks due to the governor's order. The TEA also did not require schools to inform parents of a positive COVID-19 case or conduct contact tracing.  

The plaintiffs aim to put an end to the executive order and to allow local officials to determine COVID-19 orders.

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