Feds take first steps in the mask mandate fight

Coming attractions.

The U.S. Department of Education is opening civil rights investigations to determine whether five states that have banned schools from requiring masks are discriminating against students with disabilities, the agency said on Monday.

The department is targeting Iowa, Oklahoma, South Carolina, Tennessee and Utah, all Republican-led states, in its investigations. It said it was concerned that their bans on mandatory masking could leave students with disabilities and underlying health conditions more vulnerable to COVID-19, limiting their access to in-person learning opportunities.

“It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve,” U.S. Secretary of Education Miguel Cardona said in a statement.

“The Department will fight to protect every student’s right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall.”


Florida, Texas, Arkansas and Arizona are four other Republican-led states that have banned mandatory masking orders in schools. The Education Department left those states out of its inquiry because court orders or other actions have paused their enforcement, it said in a news release.

The department says it is monitoring those states and would take action if local mask-wearing policies are later barred from going into effect.

See here for the background, and here for the press release. It’s too early to say how this might go, and that’s before we get a resolution in the reams of mask mandate-related lawsuits that are still working their way through our system. Suffice it to say that the good guys have a lot of fight left in them.

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2 Responses to Feds take first steps in the mask mandate fight

  1. Kibitzer Curiae says:

    Meanwhile in the Lone Star State, where the Governor is the Sovereign and His Words are the Law …

    No further action by Abbott’s Court in the three pending mask-mandate mandamus cases, though they handed down rulings in several dozen other cases earlier today, and found time in their busy schedules to copy-edit the City of Austin’s wording of a ballot initiative earlier in the week. See In re Cleo Petricek, No. 21-0693 (Tex. Sep. 1, 2021)(orig. proc.)(conditionally granting mandamus relief and directing the Austin City Council to revise the ballot language for “Proposition A” as approved on August 11, 2021, consistent with this opinion).


    On the in-box side, there are two more amicus briefs in No. 21-0720, the case in which the Supremes rushed in once more to stop the Fourth Court of Appeals from coming to the aid of San Antonio residents against the disease-promotion order issued by the Governor.

    See top items at https://search.txcourts.gov/Case.aspx?cn=21-0720&coa=cossup


    Ron Beal (Emeritus Professor of Law at Baylor))
    Kelcy Warren
    Steven W. Smith (Editor of law publications, providing info on legislative history concerning the Texas Disaster Act)
    Harlan Crow, Robert B. Rowling , Dick Weekly (business people on a joint brief, supporting regulatory clarity and uniformity to be supplied by Governor exercising centralized control)

    Austin Achieve Public Schools, et al.
    Fort Bend Independent School District, et al.
    Houston Independent School District
    La Joya Independent School District, et al.
    The Southern Center for Child Advocacy
    Texas Association of School Boards
    Texas Association of School Boards Legal Assistance Fund

    Harris County, Texas

    Mark A. Casanova, M.D.
    Dallas County Medical Society

    Disability Rights Texas
    Parents of Medically Fragile Children

    Texas Hotel & Lodging Association

    Some of the friends submitted their briefing in more than one case and some are also a party in a related case (e.g., Harris County and school districts).

    Ron Beal is the champion in the sheer number of submissions, and has a long and distinguished track record of contributing constructively to Texas jurisprudence as an academic friend of the court.

    Beal is adamant that the Supremes got it wrong with the “status quo” rationale for staying the lower court injunction orders against Abbott, and that Abbott’s executive order must be struck down as invalid under the Disaster Act because it promotes disease and death rather than curtailing it. As such GA-38 is antithetical to the purpose of the Texas Disaster Act, and thwarts the legislative intent for its enactment rather than giving effect to it in the declared disaster. The amicus by Steven Smith provides additional details on the history of the Act in Texas.

    Earlier, Dallas County Clay Jenkins’ legal team also pointed out in the pending temporary injunction appeal in the Fifth Court of Appeals that the status-quo preservation issue that the Supremes latched on to had not even been briefed.

    “Neither the Governor’s filings nor Judge Jenkins’ responses raised or briefed the issue of status quo. Twenty-five hours later, the Texas Supreme Court issued an order allowing the temporary injunction hearing to proceed, but staying the TRO. The sole basis for the stay was a ground on which the Supreme Court did not have the benefit of any briefing by the parties: a finding that the TRO “alters the status quo preceding this controversy….” In re Abbott, No. 21-0686, Order at 1 (Tex. Aug 15, 2021) (App.6). The Supreme Court did not reach the merits of the mandamus petition or determine whether it would grant review.”

    Appellee Jenkins’ Rule 29.3 Emergency Motion for Temporary Relied dated August 26, 2021, p. 4 [since withdrawn in light of Tex. stay in 21-0720]

  2. Pingback: Just a reminder, no one is enforcing Abbott’s mask mandate ban – Off the Kuff

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