Off the Kuff Rotating Header Image

face masks

Federal lawsuit over mask mandate ban in schools has its hearing

A big case with potential national implications.

School district leaders should have the right to make decisions about mask mandates based on the needs of their students and local coronavirus spread data, attorneys argued Wednesday in federal court.

Lawyers with Disability Rights Texas, who filed the first federal lawsuit over the ban in mid-August, allege that Gov. Greg Abbott’s prohibition on mask mandates puts students with disabilities at risk.

The organization claims that Abbott’s executive order violates federal anti-discrimination law, which prohibits the exclusion of students with disabilities from public education programs and activities.

Disability Rights Texas represents students mostly younger than 12 with disabilities and underlying medical conditions “which carry an increased risk of serious complications or death in the event that they contract COVID-19″ including children who have Down syndrome, moderate to severe asthma, and chronic lung or heart conditions.

“Doctors that treat the plaintiffs told them to avoid places without universal masking,” attorney Scott Thomas said.

Their parents submitted testimony outlining their difficult choices about whether to prioritize their vulnerable children’s educational needs or their health.

“No parent should be forced to make a decision like this,” one said.

Ryan Kercher, arguing on behalf of the state, stressed that the lawsuit hinged on data, pointing to the relatively low number of COVID-19 cases in the schools of the students suing.

Judge Lee Yeakel interrupted Kercher, asking why the data mattered. If the odds of contracting COVID-19 were 10,000-1, it would matter to the one person, he said.

Kercher pushed back, saying it is important to examine the number of cases to see if a real risk existed should masks not be mandated. Holding up Fort Bend Independent School District, which does not require masks, as an example, Kercher said the district near Houston had case totals that are on par with districts that do not require masks.

But Yeakel also questioned why not search for the most safe option to prevent the spread of coronavirus.

“That’s not a choice anyone gets,” Kercher said, noting that the speed limit isn’t 5 miles per hour everywhere. He and his co-counsel did not wear face coverings during the hearing.

Yeakel did not rule on the case Wednesday but said he would work to do so as quickly as possible. He alluded to the national interest and impact such a decision could have as states across the country are also in the midst of their own mask battles. No matter what he decides, appeals appear likely.

See here, here, and here for the background. The Justice Department got involved in the case on the side of the plaintiffs earlier this week. I think they have a strong case, and of course I’m rooting for Greg Abbott to be handed a loss, but we’ll see. I do think this one will eventually make its way to SCOTUS, perhaps quickly if there’s a question about staying a favorable ruling for the plaintiffs. KVUE has more.

No vax needed to see a Rockets game

No, thanks.

The Rockets will not have any entry or seating restrictions beyond those required by NBA health and safety rules this season, according to Rockets president of business operations Gretchen Sheirr. The team does provide an option for fans to purchase seats in sections with social distancing provided in a variety of areas in Toyota Center.

The NBA requires that all those within 15 feet of the court be able to show proof that they are fully vaccinated or can provide a negative test for COVID.

The Dallas Mavericks last week announced that all fans be fully vaccinated or provide a negative test, joining Chicago Bulls and Oklahoma City Thunder, along with teams in New York (the Brooklyn Nets and New York Knicks) and in San Francisco (the Golden State Warriors) where local guidelines require it.

The Rockets’ policy for Toyota Center is in line with policies for Texans games at NRG Stadium and Astros games at Minute Maid Park.

But those are at least generally held outdoors, and even if the roof is closed on those stadia there’s still a lot more open space. The Rockets play in a much more enclosed space, and while they do have some limited “socially distanced” seating available, this sure seems like a recipe for transmission. It’s also quite different from last season, when face masks were required and attendance was capped at about 20% of capacity. I don’t begrudge them wanting to have fuller crowds – they gotta make money – but if the Mavericks can require proof of vaccination or a negative test in order to attend a game, I don’t see why the Rockets can’t. You can do better than that, y’all.

El Paso mask mandate blocked

This is a city mask mandate. It does not affect the El Paso ISD mask mandate.

El Paso’s mandate requiring masks in indoor spaces, including schools, was ended on Thursday by the 8th Court of Appeals. The ruling does not apply to the El Paso Independent School District, which is involved in a separate court case.

The appeals court said the city’s mask mandate had to be lifted while it hears an appeal by the Texas Attorney General’s Office of a lower court ruling upholding the mandate. The ruling was based on Texas Supreme Court orders on similar mask mandates in San Antonio and Bexar County, the city said in a news release.

The mask mandate by Dr. Hector Ocaranza, the El Paso health authority, has been in effect since Aug. 17. The city’s rate of newly reported COVID-19 cases has declined in that time.

[…]

Despite Thursday’s ruling, the county’s largest district can continue to require students, teachers and staff to wear masks because it is part of a multiple school district lawsuit challenging Abbott’s executive order.

The El Paso ISD Board of Trustees voted on Aug. 17 to join a suit join a suit La Joya ISD and five other districts filed against Abbott days earlier in Travis County. The lawsuit now includes nearly two dozen districts, including a community college. EPISD was the only El Paso area district to join.

A Travis County judge granted the parties a temporary injunction against Abbott, allowing the districts to continue requiring masks. The governor is contesting that ruling with the 8th Court of Appeals. State and the districts’ attorneys are still submitting briefs before the court makes a final ruling in the case.

See here for some background. As noted, El Paso has been doing all right with the Delta outbreak. One has to assume that the mask mandate has helped with that. Hopefully the lifting of it now doesn’t set them back too far.

The Delta surge is killing younger people

So many avoidable deaths.

About two weeks later, sometime in August, the [woman in the San Antonio intensive care bed] died. She was in her mid-40s.

She is among more than 9,000 Texans who have died from COVID-19 in August and September, nearly 40% of them under the age of 60, part of an alarming upswing in reported daily deaths that threatens to overtake last summer’s deadly surge in average weekly numbers.

The dramatic and sudden increase in deaths — which jumped nearly tenfold over two months this summer — comes in spite of tens of thousands of vaccine doses being administered to Texans every day.

[…]

Of the nearly 19,000 Texas deaths attributed to COVID-19 since early February, 119 were fully vaccinated according to preliminary data from the state health department.

Scientists are still researching whether the delta variant is more deadly than earlier versions of the virus, but it is known to be much more contagious, and some data suggest that it makes people much sicker, much faster than the previous versions. The COVID-19 vaccines are extremely effective in preventing serious illness or death, scientists say.

“We shouldn’t be surprised,” Dr. David Lakey, vice chancellor for health affairs, chief medical officer at the University of Texas System and a member of the Texas Medical Association’s COVID-19 task force, said of the death numbers. “The main reason the fatality rates are as high as they are is there’s a lot of COVID in a lot of people that have underlying conditions and are not immunized.”

[…]

The deadliest month of the pandemic so far was January — before vaccines were widely available — when 9,914 people died from COVID-19, according to state data. That month only 15% of the COVID-19 deaths were among Texans under age 60. Last month during the height of the delta surge, they accounted for 38% of deaths.

More Texans younger than 60 died in August than at any other point in the pandemic. Deaths of Texans in their 40s, for example, jumped to 679 — nearly double the previous peak for that age group in January 2021. For Texans in their 30s, deaths in August were 33% higher than the winter peak, while deaths of those younger than 30 — 124 in August — were 77% higher than the previous peak for that age group, which was 70 in July 2020.

Older people are still dying in the largest numbers, even as their vaccination rate has reached 98% in some areas and 79% of Texans ages 65 and older are fully vaccinated statewide. That’s because they are still more vulnerable to the illness and much more likely to die from an infection than their younger counterparts, said Spencer Fox, associate director of the University of Texas COVID-19 Modeling Consortium.

While deaths in that age group also increased in August, they were far below their peaks over the winter and last summer.

Hospitalizations peaked in August statewide — nearly reaching the record numbers from the January surge — and more hospitals reported ICUs at or over capacity than at any other time in the pandemic. Those numbers are starting to level off or decline, along with the positivity rate, which measures the percentage of COVID tests that are positive.

It’s an encouraging sign that the delta surge may finally be cresting, although that’s not a certainty, Fox said.

National models are saying the same thing, though everyone remains worried about the winter. That’s actually less of a concern here, at least for much of the state, because our winters tend to be mild, the occasional deadly freeze aside, and that means people can continue to be outdoors. Given how high our overall death rate has been, we can use all the help we can get. We’re sure not getting any from our state government.

Justice Department gets involved in federal lawsuit over mask mandate ban

Missed this over the weekend.

The Justice Department signaled its support on Wednesday for the families of children with disabilities in Texas who are suing to overturn Gov. Greg Abbott’s ban on mask mandates in the state’s schools.

The department filed a formal statement on Wednesday with the federal district court in Austin that is hearing one of the lawsuits, saying that the ban violates the rights of students with disabilities if it prevents the students from safely attending public schools in person, “even if their local school districts offered them the option of virtual learning.”

The move signals a willingness by the federal government to intervene in states where governors and other policymakers have opposed mask mandates, using federal anti-discrimination laws like the Americans with Disabilities Act. The Justice Department has often used similar statements of interest to step in to cases involving civil rights.

“Frankly I’m thrilled,” said Juliana Longoria, 38, of San Antonio. Her daughter, Juliana Ramirez, 8, is one of the plaintiffs in a suit against the ban filed in August by the advocacy group Disability Rights Texas. “It gives me a lot more hope that the federal government is serious about protecting our children,” Ms. Longoria said.

[…]

Dustin Rynders, a lawyer for Disability Rights Texas, said the department’s position put schools in Texas and beyond on notice that they had an obligation to accommodate people with disabilities, including through the wearing of masks.

“It would be discrimination for a state to prohibit ramps to enter in the school,” Mr. Rynders said. “And for many of our clients, people wearing masks to protect our clients’ health is what is required for our clients to be able to safely enter the school.”

Because masks are not required at her school, Juliana Graves, 7, has not been back to school in Sugar Land this year, according to her mother, Ricki Graves. The Lamar Consolidated Independent School District did not immediately respond to requests for comment.

Juliana has had a heart transplant, and the medication she takes to prevent rejection suppresses her immune system, her mother said. As a result, respiratory infections as simple as the common cold have landed Juliana in the hospital more than a dozen times, Ms. Graves said, adding that she worries that Covid-19 could kill her daughter.

Instead of going to school, Juliana has been receiving four hours a week of instruction from a teacher through homebound school services, Ms. Graves said. Her daughter is repeating first grade, she said, and might now be falling even further behind.

“She’s missing all her social interaction, she’s not able to go to school in person and be with her teachers and have recess and go to lunch,” Ms. Graves said. “It’s hard for her.”

See here, here, and here for the background. The story says that a hearing for the lawsuit is scheduled for this week, but I couldn’t find what the date of that hearing is, so I guess I’ll know when I see a story about that. I would like to think that an injunction barring Abbott from banning mask mandates would be in the offing, but I think a narrower ruling that would require schools that have a student that meets some definition of “disabled” to have a mandate is more likely. But I Am Not A Lawyer, so what do I know? ABC News and the Trib have more.

COVID continues to run amuck at the schools

This is our reality.

Students in Texas public schools are facing another year upturned by COVID-19 as the highly contagious delta variant spreads, mask mandates are inconsistent and children under 12 cannot yet be vaccinated against the virus.

Less than two months into this school year, the number of reported coronavirus cases among students has surpassed the total from the entire 2020-21 school year. Schools are prohibited from taking precautions such as requiring masks, though some are fighting the governor’s order banning mask mandates. Far more students are on campus, since most districts do not have a remote learning option.

[…]

State data on school cases is incomplete and likely an undercount. TEA suppresses some districts’ case counts to protect student privacy, and not all districts report student and staff cases to the state, despite agency guidance requiring otherwise. The agency also retroactively updates its data from previous weeks as more districts report cases.

Some large districts, such as Houston and Dallas, have not consistently reported cases to the state since TEA started tracking COVID-19 data on Aug. 2 for this school year. Many districts publish a COVID-19 dashboard that shows cases, and TEA recommends families check for the latest data there.

Entire districts, including Angleton and Lumberton, have closed temporarily without reporting cases to the state. These districts don’t necessarily report their closures, either, since they are not required to do so. TEA informally tracks closures based on media and district reports, said Frank Ward, an agency spokesperson.

I don’t quite understand the embedded table that this story has about school districts with the most reported COVID cases, as the numbers they report for HISD don’t match up with the ones on the HISD site. I guess they’re showing active cases and not cumulative ones, but it doesn’t sound like that from their description. In any event, the point is there’s a lot of COVID in the schools, and the schools have few options right now to mitigate it other than defying Greg Abbott’s mask mandate ban and hoping for the best in the courts. The forthcoming EUA for the Pfizer shot for kids will help eventually, though that will take time as even pro-vaxx parents may wait a bit before giving it to their kids.. And that is our reality.

Yes, mask mandates work

Not a surprise, but data is always nice.

The Centers for Disease Control and Prevention released new studies Friday that show enforcing masks in schools helps reduce the spread of COVID-19.

One study looked at data from schools in Arizona’s Maricopa and Pima Counties after they resumed in-person learning in late July for the 2021-22 academic year. The two counties account for roughly 75% of the state’s population.

The CDC found that the K-12 schools that did not have mask requirements at the beginning of the school year were 3.5 times more likely to have COVID outbreaks than schools that required all people, regardless of vaccination status, to wear a mask indoors from the first day of school.Of the 999 schools analyzed in the study, 21% had an early mask requirement, 30.9% enacted a mask requirement between nine and 17 days after the school year began, and 48% had no mask requirement. Of the 191 COVID outbreaks that occurred in those schools from July 15 to August 31, 113 were in schools that did not enforce masks at all. Schools with early mask requirements had the lowest number of outbreaks.

During that time frame, Arizona was experiencing an upward trend of weekly COVID cases, according to Johns Hopkins University.

Another study from the CDC looked at the impact of school mask mandates across the U.S.

Authors looked at data from 520 counties that started school between July 1 and September 4 this year and had at least a full week of case data from the school year. They only looked at counties where all the schools had the same mask policies. Of the 520 counties, 198 had a school mask requirement and 322 did not.

Researchers found that counties that had no mask requirements in their schools had a higher rate of pediatric COVID cases after the school year began than those schools that did have requirements. Schools that required masks, the study found, had 16.32 cases per 100,000 children in the first week of classes; schools without had 34.85 cases per 100,000 children.

Authors did note, however, that all children in the counties were included in the data and not just those who are school-age. They also noted that teacher vaccinate rates and school testing data were not controlled in the analyses, and that the sample size of counties is small.

Here’s the CDC press release for the studies. I’m sure you can guess why I posted about this. The data speaks for itself, so I’ll just leave it here.

Feds officially investigating Texas mask mandate ban

Good.

The U.S. Department of Education on Tuesday launched a civil rights investigation into Gov. Greg Abbott’s ban on mask mandates in schools, making Texas the sixth state to face a federal inquiry over mask rules.

The investigation will focus on whether Abbott’s order prevents students with disabilities who are at heightened risk for severe illness from COVID-19 from safely returning to in-person education, in violation of federal law, Suzanne B. Goldberg, the acting assistant secretary for civil rights wrote in a letter to Texas Commissioner of Education Mike Morath.

The investigation comes after the Texas Education Agency released guidance saying public school systems cannot require students or staff to wear masks to prevent the spread of COVID-19 in light of Abbott’s ban on mask mandates.

[…]

Goldberg wrote that the Office for Civil Rights will examine whether TEA “may be preventing school districts in the state from considering or meeting the individual educational needs of students with disabilities or otherwise enabling discrimination based on disability.”

The department previously opened similar investigations into mask policies in Iowa, South Carolina, Utah, Oklahoma and Tennessee. But the agency had not done so in Texas because of court orders preventing the state from enforcing Abbott’s order. The new TEA guidance changed that, however.

See here and here for the background. The TEA’s new directive made me scratch my head.

In newly released guidance, the Texas Education Agency says public school systems cannot require students or staff to wear masks to prevent the spread of COVID-19.

A statement released by the agency Friday says Gov. Greg Abbott’s May executive order banning mask mandates precludes districts from requiring face coverings.

“Per GA-38, school systems cannot require students or staff to wear a mask. GA-38 addresses government-mandated face coverings in response to the COVID-19 pandemic,” the statement reads. “Other authority to require protective equipment, including masks, in an employment setting is not necessarily affected by GA-38.”

The agency previously had said it would not enforce the governor’s ban until the issue was resolved in the courts.

Texas Attorney General Ken Paxton has sued several school districts for imposing mask requirements on students and teachers, and some districts have sued the state over the governor’s order. The lawsuits have produced mixed results with some courts upholding districts’ mask mandates and some siding with the attorney general.

TEA officials on Tuesday did not immediately respond to requests for comment on the new guidelines and questions about how the agency would enforce the ban on mask mandates. The agency has not yet clarified what prompted the new guidelines, given that the legal battles regarding the order are ongoing.

Hard to know exactly what motivated this, but “pressure from Greg Abbott and Dan Patrick and Ken Paxton” would be high on my list of suspects. If I were to advise school districts that currently have mask mandates, as HISD does, or are thinking about imposing one, I would say go right ahead, and keep the mandates you have. This is a toothless threat, and the courts have not yet weighed in on the issue in a meaningful way. We know that having the mask mandates promotes safety, and if that isn’t the highest priority I don’t know what is. Do not waver.

Anyway. The Trib has an explainer about the state of mask mandates and lawsuits around them, but it doesn’t indicate when the legal cases may be having hearings, which admittedly would be a big task to track. The federal lawsuit will have a hearing on October 6, and we may get some clarity out of that. In the meantime, keep the mask mandates. We need them, and (a couple of district court judges aside) no one is stopping school districts from having them. The Trib has more.

El Paso is doing all right with Delta

Good for them, let’s hope it lasts.

While some other metro areas like Austin reported record high numbers of COVID-19 patients in their area hospitals just last month, and while statewide hospitalizations came close to eclipsing the January peak of 14,218, El Paso-area hospitals, which serve nearly a million West Texas residents, haven’t come close to their previous highs.

El Paso’s peak for COVID-19 hospitalizations was just over 1,100 in mid-November, said Wanda Helgesen, director of BorderRAC, the state’s regional advisory council for local hospitals.

On Thursday, the number of people hospitalized for COVID-19 in El Paso was 127.

In fact, the city’s daily hospitalization numbers haven’t broken 200 since March, according to the Texas Department of State Health Services. Hospitals are seeing an increase in patients, have occasionally seen their ICUs fill up and are having the same staffing problems as the rest of the state, she said, but have so far been able to handle the uptick.

Most of the pressure is related to non-COVID patients, many of whom had been waiting to get treatment for other problems, she said.

“We do have a surge of patients but not to the extent that other parts of Texas are having,” she said.

Helgesen and others say much of the credit can be attributed to the area’s high vaccination rate, widespread compliance with masking and social distancing, and a strong partnership among local community and health care leaders.

“It is amazing,” Helgesen said. “It is absolutely a credit to our community. I really think it was an all-out effort.”

The share of COVID-19 tests in El Paso that come back positive is hovering around 6%, while the statewide positivity rate is three times that at 18%.

And while COVID-19 patients, most of whom are unvaccinated, took up more than 30% of hospital capacity in some areas and more than 20% statewide last week, in El Paso they accounted for only 7% of patients in local hospitals.

For a city with one of the state’s highest per-capita COVID-19 death counts, the numbers present a rare glimmer of good news for the traumatized residents of this West Texas border city.

“Compared to the rest of Texas, we’re in heaven,” said Gabriel Ibarra-Mejia, assistant professor of public health at the University of Texas-El Paso. “That doesn’t mean we are free from COVID, but we’re doing much, much better than most of the rest of the state. The numbers don’t lie.”

Civic and health leaders say they aren’t ignoring one important fact: El Paso’s surges have been weeks behind the rest of the state throughout the pandemic, so it’s possible that the region’s own delta-fueled spike could still be ahead.

“We aren’t letting our guard down,” Helgesen said.

El Paso Mayor Oscar Leeser, who lost his mother and brother to COVID during the winter surge, said the reason the city and county have enacted recent mask mandates, in defiance of Gov. Greg Abbott’s ban on them and in spite of lower numbers, is because the potential for another surge is still real.

“We do worry and we want to make sure that we don’t have any spikes,” he said. “You always want to be proactive and you always want to be prepared.”

The story goes on to recount the huge spike in COVID cases that El Paso experienced last November, which put it in the national news. If you look at the included chart of COVID cases, which tracks El Paso and the state as a whole, the two were mostly in sync except for that giant surge in November, which came between the two big statewide surges, and now, when the statewide rate began to take off in May but El Paso’s stayed more or less where it had been. I’m sure the mask mandate and above-norm vaccination rates have helped with that, but it may also be that enough unvaccinated El Pasoans have had COVID that the overall rate of immunity is high enough to be something like herd immunity. Or maybe they’re just lucky right now, and the curve will begin to turn upward for them eventually. I very much hope that’s not the case, but I think we all know that this pandemic has been persistent and somewhat random about who gets it the worst at a given time. In the meantime, though, keep on keeping on, El Paso.

UT-Tyler/DMN: Abbott loses ground

A well-timed poll result.

Texas Gov. Greg Abbott (R) may be feeling the pressure, the latest poll from The Dallas Morning News and the University of Texas at Tyler shows.

Abbott’s approval rating has dropped to 45 percent in the aftermath of controversial legislation such as a ban on mask mandates amid the COVID-19 pandemic and a ban on most abortions after six weeks. It’s far too early to tell how things will play out in next year’s election, but two well-known potential candidates look like they could give Abbott a serious run if they do wind up entering the race.

Actor Matthew McConaughey, who has hinted that he’s entertaining the idea (though it’s unclear what party, if any, he would represent), led Abbott by nine points in a hypothetical matchup in the new poll, while former Rep. Beto O’Rourke (D-Tex.), who ran against Sen. Ted Cruz (R-Tex.) for a spot in the upper chamber and later took a shot at the Democratic presidential nomination, cut a previous 12-point head-to-head deficit against Abbott down to five in the survey. Abbott does have a more comfortable lead against Republican primary challengers, however.

The DMN story is here, and the poll data is here. I’ve covered the McConaughey matter before, and you can refer to those previous entries because the issue remains the same. For what it’s worth, the UT-Tyler poll doesn’t mention Beto’s party either, but I think we can safely assume that a decent number of poll respondents correctly identify him as a Democrat.

The headline result here is that Abbott leads Beto 42-37 in this poll after having led him 45-33 in the July poll. We will surely start to get a lot more head-to-head data now that Beto is semi-officially in the race. We do have some previous results we can look at to provide some context, so let’s do that. First, here are the approval/disapproval numbers for Joe Biden and Greg Abbott, plus the favorable/unfavorable numbers for Beto:


April

Name     App  Disapp  Neither
=============================
Biden     48      41       12  
Abbott    50      36       15
Beto      35      37       27

June

Name      App  Disapp  Neither
==============================
Biden      47      41       11
Abbott     50      36       14
Beto       31      40       29

September

Name      App  Disapp  Neither
==============================
Biden      42      50        9
Abbott     45      44       11
Beto       34      42       24

I’ve combined the strong/somewhat approve/disapprove numbers for Abbott and Biden, and the strong/somewhat favorable/unfavorable numbers for Beto; there was also a “don’t know enough” option for Beto, which I added into the “Neither” column. Biden’s approval drop is expected given the national numbers, and honestly they’re better than I might have expected given that. Abbott is doing better here than in the recent Texas Politics Project and Morning Consult polls, but the direction is the same. Again, it’s hard to say how the various factors will play into the 2022 election, so for now let’s just note that this is where we are.

Two other data points of interest. Both were asked for the first time in the September poll, so there’s nothing to compare them to from this source, but we do have some data from elsewhere. First, this poll included a “right direction/wrong direction” question for Texas, with the result being 44/54 wrong/right. Dems were 40/59 for “wrong”, Republicans were 59/39 for “right”, and indies were interestingly 33/64 for “wrong”. Make of that what you will, and compare to the recent Texas 2036 survey of people’s “right/wrong direction” attitudes.

Finally, this poll gets into mask and vaccine mandates and the bans on same:

Do you support or oppose Governor Abbott’s ban on mask mandates?


        Total    Dem  Ind  Rep
==============================
Support   44%    33%  32%  67%
Oppose    55%    66%  67%  33%

Do you support or oppose Governor Abbott’s ban on vaccine mandates?


        Total    Dem  Ind  Rep
==============================
Support   49%    37%  38%  72%
Oppose    49%    62%  60%  28%

There’s also a question about mask mandates in schools, with 50% saying masks should be required in all K-12 classrooms, 26% saying schools should be allowed to decide, and 20% saying no mandates. There’s national data showing that the public is broadly in favor of how Democrats and President Biden have responded to COVID (and also of mask and vaccine mandates) and opposed to the Republican response. This is the sort of thing that can certainly change over time, but for now, and for a nascent Beto campaign, coming in hot on a platform that strongly criticizes Abbott on this issue would seem to have some traction. Again, more polling will surely follow, but this is very much an issue to watch.

Galveston ISD mask mandate remains, Round Rock gets halted

Good.

A Galveston County judge Thursday denied an attempt by Attorney General Ken Paxton to stop Galveston ISD from requiring masks, according to a court document.

Judge Kerry Neves ruled against Texas’ request for a temporary restraining order on mask mandates in the district.

According to court documents, a hearing on the matter is set for Sept. 28.

See here for the background. That’s the whole Chron story – the Galveston County News covered this as well, but they’re behind a paywall so I can’t see it. Paxton scored an initial win against Paris ISD in his second round of lawsuits, though that happened without Paris ISD being in the courtroom. It would seem he used that same tactic in Round Rock.

A state district judge in Williamson County has temporarily blocked the Round Rock school district from enforcing its mask mandate, according to Texas Attorney General Ken Paxton, who sued the school district.

In a tweet Thursday night, Paxton’s office declared “Another WIN!” in its legal fight against school districts that have defied Gov. Greg Abbott’s executive orders banning schools from requiring masks. Paxton sued Round Rock along with Elgin and other school districts with mask mandates last Friday.

[…]

In a statement, Round Rock school district leaders said they had not been officially served or notified by Paxton’s office of the order. District officials also said they were not given the opportunity attend any court proceedings to oppose the order, but they said they would “comply with any lawfully issued court order.”

“We will also use all proper and available legal proceedings to challenge this order and vigorously defend its long-established lawful authority to provide a safe and healthy learning environment for Round Rock ISD students and staff, including during this pandemic,” the statement said. “The district continues to strongly encourage and recommend the use of masks in accordance with guidance from our local health authorities.”

I totally get Paxton playing dirty, but what is up with these judges letting it happen? Do they have no responsibility to at least inquire why there’s no opposing counsel? I’m puzzled, to say the least.

As for the other affected districts, I did a quick Google News search and didn’t see any news for them. I would assume there will be more rulings in the coming days, but for now as far as I can tell this is where we are.

Federal judge will fast-track mask mandate ban lawsuit

I’m ready.

Federal District Judge Lee Yeakel said Wednesday morning he intends to fast-track a lawsuit filed on behalf of 14 Texas schoolchildren with disabilities who allege that Gov. Greg Abbott’s ban on mask mandates breaks federal law by discriminating against them because they are particularly vulnerable to COVID-19.

In Wednesday’s hearing, Yeakel denied a request for a temporary restraining order that would have barred Texas from enforcing Abbott’s order until Oct. 6, when the case is scheduled for trial.

Yeakel said he needs more information about the case before he will be ready to make a ruling.

The delay will allow the judge to hear from witnesses and see other evidence in the case. No matter what his decision on the case, Yeakel said he expects it to be appealed to higher courts — possibly as far as the U.S. Supreme Court.

“I think the issues in this case are extremely important,” Yeakel said.

In legal filings and in court, lawyers for the 14 children argued that Texas’ mask mandate prevents school districts from making reasonable accommodations for children with disabilities, in violation of the federal Americans with Disabilities Act. They also said it preempts the federal American Rescue Plan, the COVID-19 relief package signed into law by the president earlier this year, which they said provides discretion for school districts to follow federal Centers for Disease Control and Prevention recommendations.

[…]

The lawsuit is against Attorney General Ken Paxton, Abbott and Abbott’s Texas Education Agency. The order was defended in court Wednesday by lawyers from Paxton’s office.

The crux of their defense was that the lawsuit was improper because none of the defendants are the right people to sue over Abbott’s mask order. They said the proper people to sue would be those who are enforcing the law, but no one is actually enforcing it, so there’s no one to sue.

“(Abbott’s order) doesn’t stop the plaintiffs from doing anything. They can say, think, do whatever they want. It does not regulate their conduct, it regulates the conduct of local officials,” said Todd Dickerson, an assistant attorney general, adding that there is “no credible threat of enforcement” from the local district attorneys who are supposed to enforce it.

See here and here for the background. The “you can’t sue me” dodge was a key component of Abbott’s claim/admission that he has no power to enforce the mask mandate ban, and has been a part of the defense that he and Ken Paxton have put forward in the various lawsuits against them over the ban. As such, it’s not a surprise to see it turn up here – this is becoming a foundational piece of their governance, which is that no one can hold them accountable for anything. But as the plaintiffs point out, for a guy who claims he can’t enforce Abbott’s mask mandate ban order, he sure is suing a lot of people to do just exactly that. So which one is true? We’ll see what the judge makes of it.

Paxton sues more school districts

Another rampage by the morally bankrupt felon in the AG’s office.

Best mugshot ever

Texas Attorney General Ken Paxton has unleashed another wave of lawsuits against school districts over their masking policies — but one of them says it doesn’t even require face coverings.

Midway Independent School District is a Waco-area district that sits on a list compiled by the attorney general’s office of school districts and counties that have flouted Gov. Greg Abbott’s ban and put in place their own mask-wearing orders.

The hitch? Midway ISD doesn’t mandate that students, teachers, school staff or visitors don masks while on school premises, a district spokesperson said Wednesday. Midway officials have tried to convince the attorney general’s office the district doesn’t have a mandate — but to no avail.

“We have not received information of why or how we are considered out of compliance or considered for a lawsuit,” district spokesperson Traci Marlin said in an email.

The Midway school district is among nine that Paxton announced on Tuesday that he is suing for allegedly defying Abbott’s executive order banning public schools and local governments from enacting local mask mandates.

Under Midway’s virus protocol, campuses can issue 10-day “mask directives” that encourage mask-wearing on the premises if virus transmission reaches a certain level — but doesn’t require it. The attorney general’s office pointed to that protocol as the basis of its lawsuit against the district but declined to answer other questions from The Texas Tribune.

Those directives are not the same as mandates, Marlin said — and in one case, such a directive successfully cut down the number of active cases on a campus.

“Directives are not enforced,” she said. “There are no punishments or repercussions.”

McGregor Independent School District, another district near Waco, did require mask-wearing if virus transmission became too severe but, at Paxton’s request, did not enforce the mandate, Superintendent James Lenamon said in a statement.

Nonetheless, Paxton sued the district.

“The district is disappointed that the AG has decided to sue anyway,” Lenamon said.

[…]

In addition to McGregor and Midway, Paxton announced lawsuits against seven other districts Tuesday: Diboll, Honey Grove, La Vega, Longview, Lufkin, Paris and Waco school districts.

See here for the previous story. The fact that neither Ken Paxton nor Greg Abbott has the power to enforce the mask mandate ban isn’t stopping him. Given that, we should not be surprised that he isn’t particularly concerned about the details in these districts. This is all about throwing his weight around. And by the way, for anyone who might have thought that P Bush or Eva Guzman would present a more moderate, less “burn the witch!” alternative to Paxton in the Republican primary, I’m not seeing any statements from them in which they question the wisdom of this effort. I’m just saying. (There is one candidate who has spoken about it.)

Ironically, the one win Paxton has chalked up so far has come against the one school district that appeared to have found a silver bullet.

Paris schools announced Tuesday they are no longer requiring masks on campus. This comes a month after the Texas Attorney General Ken Paxton sent the district a cease and desist letter telling them to stop requiring masks. Paxton listed Paris ISD, the school board and the superintendent in a lawsuit over the same mandate.

According to a temporary restraining order signed by a Lamar County district judge Monday, Paris Independent School District is no longer able to enforce their mask mandate and, they backed down. But despite the order Paris ISD says they will continue to strongly encourage everyone on campus to wear one.

“It was a rather cowardly act on the Attorney Generals office’s part,” said General Counsel for the district, Dennis Eichelbaum.

[…]

In August, the district included masks as a part of their dress code citing Chapter 11 of Texas Education Code, which states the school board has the right to set the dress code.

“There’s absolutely no reason why if we want to have a dress code, there’s no justification for the government office without having suspended the laws that give us the authority to run the district, to allow us to do our job,” said Eichelbaum.

According to court documents, a district judge signed a temporary restraining order against the district on Monday making it against the law for them to require masks on campus.

“We are still encouraging everyone to wear masks even if it’s not mandated, Paris ISD has seen a significant drop compared to other communities in the area with regard to children being sent home for COVID-19. we believe there’s a connection with the mask mandate., and we encourage everyone to continue to wear a mask to keep everyone safe,” Eichelbaum said. “We’re now set for a hearing next week in district court, and at that time, we will be defending our board policy which permits mask mandates.”

Eichelbaum says they will be defending the district’s right to enforce safety measures during the COVID-19 pandemic.

A hearing is set for Tuesday, September 21. This will determine whether the temporary restraining order will be overturned.

See here and here for the background. You got a raw deal, Paris. I’m rooting for you at the hearing. KVUE has more.

UPDATE: Wait, this detail wasn’t in that last story for some reason.

Dennis Eichelbaum, lawyer for Paris ISD, said Paxton’s office — despite the fact Paxton had sent multiple letters threatening lawsuits beforehand — didn’t notify the district of the lawsuit until after the hearing was over, and the restraining order had been granted. Paris ISD didn’t get to make its case against the restraining order as a result, Eichelbaum said, describing it as “a cowardly move” from Paxton.

“First, it’s against the rules of civil procedure. So he doesn’t care about the law when it applies to him,” Eichelbaum said. “He’s very brave to go to court when you’re not there to defend yourselves.”

“A lot of times attorneys will get sanctioned for it if they do something like this,” he added, saying he will ask the district’s trustees if they want to pursue the matter with the judge.

Emphasis mine, and wow. What a sniveling coward Ken Paxton is. Please, please, pursue this matter with the judge.

Our COVID failures and our economy

Remember when the goal was to get the economy going again?

The recent surge in COVID-19 cases is not only hitting the state in terms of lives lost, but it’s taking its toll on the Texas economy. That’s according to a new report from the Perryman Group, an economic research and analysis firm in Waco.

They estimate the state’s failure to contain the disease has led to nearly 72,000 job losses. The analysis also found on average, the state loses roughly $187,000 for every employee unable to return to work because of the pandemic. That amounts to total potential losses of about $13 billion per year, the firm found.

But they argue many of these potential losses are preventable.

“What we need to do right now is do everything we can to make it safer for people to return to work. That includes masks where appropriate. That includes safety in schools so people that have issues with their children in childcare and things like that that prevent people from returning to work,” said Ray Perryman, president and CEO of the Perryman Group. “These are what we call preventable [economic] losses.”

Perryman said certain industries are being hit harder than others.

“In terms of dollar impacts, obviously a worker in a tech industry per worker has a much bigger impact than say a worker in a restaurant. But from an industry perspective, the ones being hit the hardest are the ones you’ve been hearing about since the beginning of the pandemic that deal in interpersonal relationships – retail, particularly restaurants, salons, airlines,” he said.

He says getting more people vaccinated is also key to avoid future economic losses.

The full report is here if you want to read it, and there’s video of an interview with Perryman about this at the first link. Honestly, in the context of Texas’ economy, $13 billion is pretty small, as is 72,000 jobs. Not nothing, especially if you’re in one of the more affected sectors, but not so much that you’d notice it on a graph. The point that all of this was preventable, with more aggressive vaccination promotion and distribution, and a continued reliance on masks while allowing local governments to have the discretion they need to respond as they see fit, is still true. There’s no good reason why we have to be going through what we are going through now. It was all the result of Greg Abbott’s actions.

A bit of good news in the wastewater

I’ll take it where I can get it.

Community spread of coronavirus is on the decline from its recent summertime high, but experts warn that Labor Day gatherings and kids’ return to classrooms could bring a rash of new infections in the coming weeks.

The latest samples of Houston’s wastewater — a highly sensitive method for tracking coronavirus — show diminishing traces of the virus across the region, said Loren Hopkins, the Houston Health Department’s chief environmental science officer. The results indicate a slight drop in person-to-person spread.

“The positivity rates are still alarmingly high, the wastewater rates are still alarmingly high, but it may be trending down,” Hopkins said Wednesday.

The decline could be short-lived.

The holiday weekend and the start of school, which spurred record infections among children, will likely keep the Houston area in “plateau mode” for the foreseeable future, said Bill McKeon, CEO of the Texas Medical Center.

On Tuesday, the Texas Medical Center reported that the rate of transmission across the Houston area was 0.87; the average for the previous week was 0.99. Both figures landing below 1.0 is a good sign; any number above 1.0 means the virus is spreading through the community.

Still, McKeon urged caution. Tuesday’s low daily transmission rate of 0.87 could be artificially deflated due to low testing rates, he said, which commonly occur over holiday weekends.

“We are just coming out of the Labor Day weekend and we typically do not see the impact of holidays for one to two weeks,” McKeon said.

[…]

Houston’s coronavirus hospitalizations slowed by 2.3 percent in the past week, but remained only slightly lower than August’s record peak. As of Tuesday, 3,370 people were in area hospitals for COVID-19, down from the record high of 3,500 on Aug. 24, according to the Texas Department of State Health Services.

Ballooning school transmissions are another concern, experts said, especially in districts that do not have mask mandates. Student infections are rapidly rising across the state, with the total number of positive cases among public school students surging by 90 percent just a few weeks into the new school year.

“We need mask mandates to protect our school children from getting infected and bringing it home to Mom and Dad,” said Catherine Troisi, an epidemiologist at Texas Medical Center’s School of Public Health.

The wastewater had documented to surge, and it will be the leading indicator when there is a real decline. I hope people were cautious over the Labor Day weekend, but we’ll know soon enough what if any effect that had. As for mask mandates in the schools, it seems to be working pretty well for HISD. I keep saying, none of this is a mystery, we know what we need to do, we just have to do it.

Paxton sues several school districts over mask mandates

Whatever, dude.

Best mugshot ever

Texas Attorney General Ken Paxton announced Friday that he filed a lawsuit against Richardson ISD, following through on his pledge to sue school districts who mandate masks.

The district defied Gov. Greg Abbott’s executive order prohibiting local entities from requiring masks. The RISD trustees voted last week to affirm Superintendent Jeannie Stone’s decision to require face coverings, after they were forced to close an elementary school because of a spike in COVID-19 cases and a sixth grader was admitted into the intensive care unit.

Paxton noted in a release that the office anticipates filing additional lawsuits against the districts flouting the governor’s order. This could include Dallas ISD — the first to openly defy Abbott.

“Not only are superintendents across Texas openly violating state law, but they are using district resources—that ought to be used for teacher merit raises or other educational benefits—to defend their unlawful political maneuvering,” Paxton said in a statement.

[…]

Richardson is among the first Texas districts to be sued by Paxton. Friday he also filed suit against the Galveston, Elgin, Spring and Sherman school districts, according to his office.

He has railed against the dozens of school districts and counties who stood firm on mask mandates, repeatedly posting on social media that he would sue them all. Paxton’s office maintains an ever-evolving list of local entities that are mandating masks.

Meanwhile, Abbott’s order is tied up in both state and federal courts as districts and advocates push for mask mandates to be local decisions.

Dallas County Judge Clay Jenkins is locked in a legal fight with the state over his decision to impose a local mask mandate for businesses and schools.

Disability Rights Texas recently escalated the legal battle, filing a federal lawsuit against Abbott, alleging his order unfairly harms children with disabilities.

Richardson trustees also recently voted to join an existing multi-district lawsuit challenging Abbott’s ban, which argues the governor’s executive order exceeds his authority and infringes on local control.

Paxton’s move could have federal implications, as well. The U.S. Department of Education’s Office for Civil Rights recently opened investigations into five states that prohibit mask mandates, saying such bans may violate the federal law meant to protect students with disabilities.

Department officials indicated they had not opened an investigation into Texas because its ban isn’t currently being enforced because of court orders.

Again, neither Ken Paxton nor Greg Abbott has the power to enforce mask mandate bans. Even if Paxton gets a judge to rule in his favor – the score so far is tilted pretty heavily against him – local DAs can and should thumb their noses at him. It’s not clear to me where these lawsuits have been filed – in this press release he said there were three of them, but didn’t get more specific than that. There may be more coming, so eventually we’ll sort it all out. In the meantime, Paxton can go pound sand. The Chron, Reform Austin, and KXAN have more.

UPDATE: Here’s the Trib story, which notes that the lawsuit against Galveston ISD was brought in Galveston County, as one might expect. That’s probably true of the others, each filed in their home county, but it would still be nice to have that confirmed.

Mayor Turner orders unvaxxed city employees to get tested twice a week

So maybe get vaccinated, and avoid all the hassle.

Mayor Sylvester Turner

Unvaccinated city workers must get tested for COVID-19 twice a month and report their results to the human resources department, Mayor Sylvester Turner announced Wednesday.

Turner signed an executive order implementing the policy,which takes effect Oct 8. It will allow some exemptions for religious and medical reasons.

The plans come as the city regularly has had more than 300 active cases of the virus among its workforce, Turner said. The latest numbers showed 342 workers with the virus, including 129 police, 161 municipal and 52 fire department employees.

Those cases hamper city operations, the mayor said.

“When you have 129 police officers with COVID, they’re not able to perform their jobs. Same thing with municipal workers, and, for example, permitting, that slows things down,” Turner said. “Simply don’t want them to get sick and don’t want anybody, anybody to die.”

[…]

The policy will apply to all police, fire and municipal staff who have not been fully vaccinated. It will not apply to elected officials or appointed members to the city’s boards and commissions.

The fire, police and municipal workers unions did not respond to requests for comment on Turner’s plan.

Turner said staff will face disciplinary action if they do not comply.

“It could even cost you your job,” the mayor said.

The mayor in recent weeks had teased a policy to encourage vaccinations, saying many city workers have not gotten their shots.

Mayor Turner implemented a mask mandate for city employees in early August. As far as I know, that executive order has not been involved in any of the lawsuits over mandates and Greg Abbott’s ban on them. This is a step up from that – it’s not a vaccine mandate per se, but it’s pretty close and I doubt Greg Abbott or Ken Paxton will split hairs. (They already have a reason to be whipped into a frenzy about this.) Whether or not cities can issue vaccine mandates is on the agenda for the next special session. What I’m saying is, I don’t know how long I expect this policy to last. And that’s before we hear of the inevitable resistance from the police and firefighter unions – police unions around the country have been staunch resisters of vaccine mandates, and we know how well the Mayor and the HPFFA get along. I support what the Mayor is doing here – if anything, I’d want to see the testing be more frequent – I just doubt he’ll be able to fully implement it. I’ll be happy to be proven wrong.

We really need a mask mandate at every school district

Or we can just accept a lot more hospitalized kids. Easy choice if you ask me.

The number of Texas children hospitalized with COVID-19 hit an all-time high over the weekend, with 345 on Saturday and 307 on Sunday, the highest two-day stretch recorded during the pandemic, according to data from the Texas Department of State Health Services.

The data follows a national trend of rising pediatric COVID hospitalization rates. A study from the Centers for Disease Control and Prevention released Friday shows the highest rate of increase among teenagers and children 0-4 years old. The study also found unvaccinated adolescents were 10 times more likely to need hospitalization compared to their vaccinated peers.

Children under 12 are ineligible for any of the available COVID-19 vaccines.

School reopenings and “pandemic fatigue” are two primary reasons for the statewide increase, said Dr. Katelyn Jetelina, an epidemiologist at UTHealth School of Public Health in Dallas and author of the popular blog “Your Local Epidemiologist.”

“The more that kids interact with each other, the more this is going to transmit,” she said, adding, “We really need to step up our mask game. Parents really need to invest in good masks to wear for their school.”

She urged parents to buy N95 masks for their children and to “lead by example” with their own mask-wearing habits.

Multiple studies have shown masks help reduce COVID transmission indoors. The CDC study also recommends universal masking in schools, where cases are soaring in Texas. The state health department on Aug. 29 recorded 51,904 COVID cases among Texas students since the 2021-22 school year began.

I mean, we’re a year and a half into this pandemic. We do know all this stuff already. I get that some people are tired of doing pandemic things, but 1) if said person is not vaccinated then they can just STFU right now, as this is all their fault, and 2) as the kids say, we may be done with the pandemic but it’s not done with us.

Thankfully, HISD is doing it right.

While outbreaks have forced some districts to close schools already, Houston ISD has fared comparatively well two weeks into its school year.

By midday Friday, the state’s largest district of nearly 200,000 students had confirmed 1,085 active cases among students and staffers, according to its dashboard.

The most important mitigation strategy the district could implement is one it already has in place — ensuring people wear masks, Superintendent Millard House II said Thursday.

“As we look at the data in our schools, yes we have COVID cases,” House said during an agenda review meeting. “But if we look at the percentage of spread in our schools in comparison to the number of kids that we have, it looks — it does not look bad in comparison to some of the other schools that don’t have mandates in place.”

Health professionals agree the mask mandate may be helping HISD reduce the risk transmission inside its classrooms, even as kids younger than 12 remain ineligible to be inoculated and the delta variant continues to spread mostly unchecked in the Houston area.

“I attribute it to that,” said Dr. Quianta Moore, Huffington Fellow in child health policy at Rice University’s Baker Institute for Public Policy. “There are some schools that the parents and the community are wearing masks and they are also having low transmission.”

As I said before, I don’t want to get overconfident, but again, we know that masking helps. Given the risks, the current legal status, and the complete lack of consequences for defiance, I can’t think of any good reason for a school district to not have a mask mandate in place. We’re either trying or we’ve given up.

Special session 3.0

Yeah, we knew it was coming. Still too soon.

Gov. Greg Abbott on Tuesday announced a third special legislative session that will begin on Sept. 20 and tackle redistrictingrestrictions on transgender student athletes and the ongoing COVID-19 pandemic.

“The Texas Legislature now has the opportunity to redraw legislative and congressional districts in accordance with the new census numbers,” Abbott said in a statement. “In addition to redistricting, there are still issues remaining that are critical to building a stronger and brighter future for all Texans.”

Lawmakers, who will meet in Austin for the fourth time this year, will also be tasked with allocating $16 billion in federal COVID-19 relief funds and with deciding whether state or local governments can mandate COVID-19 vaccines. Abbott also included on his five-item agenda a bill that would ban the tethering of dogs outside with heavy chains, which he had vetoed earlier this year. Abbott asked lawmakers to address concerns he had about the specificity of the bill and “over-criminalization.”

The Legislature just wrapped its second overtime round on Thursday, delivering on major conservative priorities like an elections law that restricts how and when voters cast ballots, a ban on how teachers can talk about race and history in classroomsbillions of dollars in additional border security funding and further restricting abortion access.

But lawmakers failed to deliver on two issues pushed by the GOP base: requiring transgender student athletes to play on teams based on the gender assigned to them at or near birth, and banning COVID-19 mandates.

Abbott had asked lawmakers to ban mask mandates in schools during the second special session but lawmakers could not get that proposal over the hump. Now, Abbott is asking the Legislature to decide whether state or local governments can mandate COVID-19 vaccines.

The bills about transgender student athletes and COVID-19 mandates will likely turn up the heat on an already contentious 30-day session. Lawmakers will take up their decennial redrawing of the state’s political maps, meaning some legislators will be fighting for their political lives. (Redistricting usually takes place during the first legislative session after the census, but it was delayed this year because of setbacks spurred by the coronavirus and the Trump administration’s handling of the census data.)

Like I said, we knew it was coming. I don’t know if the lawsuit that was filed by two State Senators to stop legislative redistricting will be successful, but I have to assume there will be a ruling of some kind before this session gets underway. The continued assault on trans kids is sadly unsurprising; the lack of a fraudit item is at least temporarily hopeful. I mean look, none of us want another special session. I’m sure that wearing us all down is part of the plan. But here we are anyway. Oh, and Abbott et al will try to do a bit of cleanup on the so-called “heartbeat bill” since none of them know how to talk about the lack of a rape or incest exemption. So we have that to look forward to as well.

Just a reminder, no one is enforcing Abbott’s mask mandate ban

In case you had forgotten.

While Republican Gov. Greg Abbott is speaking out against mask mandates in schools and suing to stop some Texas school districts from enacting them, in reality his order banning such mandates has gone largely unenforced — so much so that the federal government doesn’t consider it active.

Abbott threatened $1,000 fines for officials who try to impose mask mandates, although no such fines have been handed down. And if he wanted to, Abbott could send state troopers or deputize the Texas National Guard to enforce his order, as he has done on the border, but he hasn’t. Texas Attorney General Ken Paxton, meanwhile, has a published list of 71 non complying cities, counties and school districts; is fighting in court with at least six of them and sent letters threatening more legal action to others.

But in the court filings from the lawsuits, Paxton has acknowledged that neither he nor Abbott will directly enforce the ban on mask mandates, instead leaving it to local district attorneys, some of whom are already on-record saying that they don’t intend to prosecute.

Abbott’s own Texas Education Agency on Aug. 19 said that the ban on mask mandates would not be enforced until the courts have resolved legal challenges to his authority to do it. And the federal Department of Education chose Monday not to open an investigation into the matter in Texas, even as it launched probes of five other states with active bans.

[…]

The five largest counties in the state are Harris, Dallas, Tarrant, Bexar and Travis. The district attorneys for Harris and Bexar counties have already announced they don’t intend to prosecute school districts over mask rules, and a prosecutor with Travis County said the office would remain focused on violent crime, although they would evaluate the situation on a case-by-case basis.

Tarrant County did not respond to a request for comment, and a spokeswoman for Dallas County said: “This issue is working its way through the civil courts. At this point in time — until that’s concluded and depending on how that’s concluded — there’s no reason to consider a position on that.”

On Monday at a House Public Education Committee hearing, Rep. Steve Allison, a San Antonio-area Republican, acknowledged there’s “an appearance of dysfunction” in government right now over the mask orders and Abbott’s ban.

See here and here for the background. I’m not sure why the Travis and Dallas DAs are being so equivocal, but it doesn’t really matter. There’s no way they’ll prosecute anyone over this, not if they want to avoid having their asses handed to them in the next primary election. We all know this is about Greg Abbott trying to look macho for the Republican primary voters. There’s no need to help him with that in any way.

A rough start to the school year

For some districts more than others.

Angleton and Livingston ISDs announced this week they temporarily were shutting down their schools, the first Houston-area districts to halt all in-person learning amid rising numbers of COVID-19 cases among students and staff, but possibly not the last.

With reported cases increasing rapidly since schools in the Houston region reopened last month, some districts are discussing contingency plans for closing campuses and, in some cases, shifting to online learning.

Already a handful of districts temporarily have shuttered individual classrooms or entire schools, prompted by the number of student infections, the number of kids having to quarantine or staff shortages caused by illness or quarantines.

With little guidance from the Texas Education Agency on metrics and thresholds that should trigger closures, school districts are making those calls on their own or relying on local health authorities. Among the factors being considered are rates of infection, teacher staffing — including the availability of substitutes — and student absences.

According to TEA, many districts have built time into their calendars in “anticipation that a temporary shutdown due to COVID” may be necessary.

“The agency has been coordinating with (districts) experiencing the need to close to ensure they have the information necessary to plan, adjust, and prepare to provide the required minimum of 75,600 operational minutes,” the agency said in an emailed statement.

[…]

Elsewhere in the state, Connally ISD in central Texas closed its five campuses near Waco for the week after two teachers died of COVID, as have a handful of east Texas districts and others in rural areas of the state.

Area districts that are mandating the use of face masks by students and staff, including Houston, Spring and Texas City ISDs, said they are not in talks about shutting down schools and are focusing on keeping in-person learning safe.

“We do not anticipate school closures,” reads Houston ISD’s COVID protocols. “However, should conditions change and an HISD school or building need to close, the determination will be made on a case-by-case basis by the superintendent in consultation with HISD Health and Medical Services and the Houston Health Department.”

Well, HISD still has a mask mandate, and I figure that has to be helping. I don’t want to get obnoxious about it since the Delta variant is terrible and pride goeth before a fall, but I’ll put better odds on HISD than on a district that isn’t taking the minimal steps to protect its students and teachers and staffers. According to the Trib, “At least 45 small school districts across Texas have been forced to temporarily stop offering in-person classes as a result of COVID-19 cases in the first few weeks of the new school year”. I’m willing to bet none of them had a mask mandate; the story didn’t specify but it did say at the end that at least one of these small districts is thinking about it in defiance of Abbott. The total number of student COVID cases that have been reported is up 90% over the previous week, which needless to say is a trend that needs to stop quickly or else. I don’t know how long we can go on like this, but I do know that whatever happens it’s on Greg Abbott. Keep all of these folks in your thoughts.

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.

Readin’ and writin’ and gettin’ COVID

Welcome back to school, kids.

Positive COVID-19 cases among Texas public school students rose by more than 9,000 last week, the highest number ever recorded in a seven-day period, state data shows.

As of Aug. 22, there were 14,033 reports of positive COVID cases in students across the state, according to data released by Texas Health and Human Services on Friday. The number represents a 182 percent increase from the 4,976 student cases reported through Aug. 15.

There were another 3,425 positive cases reported in school staff across the state, an increase of 712 from the previous week.

In some districts, more than half the new infections are among elementary school students, who are not eligible for any of the available vaccines.

“This school year is gonna look a whole lot different than last year,” said Dr. Katelyn Jetelina, an assistant professor of epidemiology at UTHealth School of Public Health in Dallas. “We have a whole lot more transmission now in the community and we have the delta variant.”

The cumulative number of cases in students since the 2021-2022 school year began is 20,256. The total staff cases so far this school year is 7,488.

In case you were wondering why so many parents are pissed about the fight against mask mandates. Now that all schools are open I would hope we won’t see any more big jumps like that, but we are going to see the case levels rise for now. I hope that at some point, when there’s enough data to be reasonably confident in the results, we can get a comparison of COVID rates in districts that have mandated masks versus those that have not.

On a related note:

People under 50 are being admitted to hospitals with COVID-19 in larger numbers than at any point during the pandemic as the latest surge of the coronavirus continues to tighten its grip on Texas.

According to data released by the Texas Department of State Health Services, as of Aug. 22, adults 30 to 49 now account for roughly 29% of all COVID-19 hospital admissions in Texas, up from 15% on Jan. 11 during the height of the winter surge.

The data shows that people in the 18-29 age group increased their share of admissions during that period from 5% to 7%, while the percentage of children under 18 admitted to hospitals with COVID-19 increased by 1 percentage point — an average of 46 children each day were hospitalized during the week ending Aug 22.

Meanwhile, fewer people over 70 are landing in hospitals with COVID-19. During the winter peak, about 41% of hospitalized COVID patients were over 70. As of Aug. 22, that dropped by almost half, to 23%.

The data confirmed what many doctors have been saying in recent weeks about the delta variant sending younger people into hospitals at a higher rate than earlier in the pandemic.

“We are seeing certainly younger patients hospitalized and younger patients on ventilators where we haven’t seen that before,” said Dr. Ron Cook, chief health officer at the Texas Tech University Health Sciences Center.

This variant has spread faster among unvaccinated Texans of all ages. As of last week, between 93% and 98% of hospitalizations have been unvaccinated people, depending on the area of Texas, officials said.

More than 70% of Texans over the age of 50 are fully vaccinated, compared to only about half of Texans between the ages of 16 and 49 and one-third of those ages 12-15. Children under age 12 are not eligible for vaccination.

And as the hospitals fill up with COVID patients, people who have other serious but treatable conditions are put in jeopardy. No amount of horse de-wormer is gonna fix that.

More injunctions against the mask mandate bans

Keep ’em coming.

Concluding that Gov. Greg Abbott exceeded his authority by banning mask mandates in Texas, an Austin judge ruled Friday that school districts in Travis County can enforce face coverings as a COVID-19 precaution.

State District Judge Catherine Mauzy’s order also applied to 19 school districts that represent about 1 million students — including Austin, Dallas, El Paso, Fort Worth and Houston — as well as Austin Community College, which also sued Abbott.

However, Texas Attorney General Ken Paxton quickly appealed, automatically blocking enforcement of Mauzy’s temporary injunction — though the Austin-based 3rd Court of Appeals can be asked to reinstate the judge’s order while Paxton’s challenge proceeds.

In her ruling, Mauzy concluded Abbott’s ban on mandatory masks — contained in a July 29 executive order — was unlawful and exceeded his authority in violation of the Texas Constitution.

Mauzy found that the school officials and parents who challenged Abbott’s order made “a sufficient showing” to establish that Abbott was not authorized to declare “by executive fiat” that school districts are prohibited from requiring masks to be worn.

Without court intervention, Mauzy added, Abbott’s ban leaves school officials unable to mandate masks to control the spread of COVID-19, “which threatens to overwhelm public schools and could result in more extreme measures such as the school closures that have already begun in several Texas school districts.”

In a separate ruling, Mauzy also granted an injunction sought by Harris County to allow a mask mandate to continue for Houston-area school districts, said Christian Menefee, county attorney.

“Gov. Abbott is misusing the Texas Disaster Act to make this pandemic worse,” Menefee said, calling the ruling an important step in reining in the governor.

But in a third challenge, the judge declined to issue a statewide injunction, requested by the Southern Center for Child Advocacy, that would have allowed mask mandates in all Texas school districts. Mauzy’s one-page order gave no reason for the denial.

It’s hard to keep track of all of these, but see here for the original ruling in the Harris County case, and here for the original ruling in the SCCA case; the filing of their lawsuit was noted here. I have so many of these posts, some of which combine stories from multiple lawsuits, so I can’t find (and may not have) a post about the original Austin lawsuit, but the famous SCOTx demurral of the emergency request by Paxton and Abbott to block a TRO was related to the Austin/Travis County lawsuit. I note that the Harris County case and the SCCA case were originally in Judge Jan Soifer’s courtroom, so I am assuming that a bunch of similar lawsuits were combined into one and that’s how they all wound up before Judge Mauzy.

The injunction may be on hold because of the appeal (there’s some fancy legal term for this that I have encountered before but forgotten by now), but the plaintiffs can and surely will ask for it to be reinstated by the Third Court of Appeals. That will force another reckoning with the Supreme Court, thanks to the recent order in the Bexar County case. In a sense all of this is just sound and fury since Abbott and Paxton can’t enforce the mask mandate bans anyway, but the ritual must be observed. I feel like I should get a CLE credit for all of this blogging. HISD Superintendent Millard House’s statement about the ruling is here, and KXAN and the Trib have more.

Abbott admits he can’t enforce his mask mandate ban

So what are we even doing here? Just make your mandate and move on.

Gov. Greg Abbott has been embroiled in court battles with Texas cities, counties and public schools that have defied his ban on local mask mandates. But in the urban areas where those battles are being waged, the local officials Abbott needs to enforce his ban aren’t playing ball.

Even as Abbott and Attorney General Ken Paxton vow to punish local government and school district officials who flout the governor’s executive order, they conceded in court documents that they actually have no power to enforce the ban.

“Neither Governor Abbott nor Attorney General Paxton will be enforcing” the order, Paxton argued in a Monday court filing in Dallas.

Since the pandemic began, Abbott has issued a flurry of executive orders, the most prominent of which have limited cities and counties from enacting measures intended to slow the spread of COVID-19, like mask mandates and occupancy restrictions on businesses like restaurants and retailers.

Cities, counties and school districts in the state’s major urban areas have responded with a flood of lawsuits challenging Abbott’s executive order prohibiting them from enacting mask mandates amid a surge of COVID-19 cases and hospitalizations.

In a bid to convince judges to toss out those legal challenges, Abbott and Paxton claim in recent court filings that they’re not the right target because it’s up to local prosecutors to enforce Abbott’s orders.

“The Governor’s executive orders, having the full force and effect of law, are enforceable by state and local law enforcement,” spokesperson Renae Eze said in a statement.

But in the state’s urban counties, those district attorneys are mostly Democrats who are unlikely to sue fellow local officials for violating Abbott’s order banning mask mandates.

“[Abbott is] saying, ‘Well, it’s not enforceable, only the DA can do it,” said Randall Erben, an adjunct law professor at the University of Texas at Austin. “Well, the DAs in Travis, Harris and Dallas are not going to prosecute anybody for violation of the executive order.”

In the state’s most populous county, Harris County District Attorney Kim Ogg doesn’t anticipate enforcing Abbott’s executive order because it’s not a criminal matter, a spokesperson said.

Abbott’s legal argument — tucked into court documents in at least five lawsuits challenging his order — has prompted some lawyers representing local governments and public schools to call out the governor and Paxton for saying one thing in public and another in the courtroom.

Yeah, Harris County Attorney Christian Menefee was one of those people. This is, as the article notes later on, one hundred percent Abbott and Paxton beating their chests for the rubes. Again, never believe a word Ken Paxton says.

Two points to consider. One is that while those of us fortunate enough to live in a sufficiently enlightened county can now put whatever pressure we want on our mayors and county judges and school boards to move forward with their mask mandates, since there won’t be any criminal consequences for them and in that sense all of the ongoing litigation doesn’t really matter. But if your city or school district is not in such a place, then you really do care about what the Supreme Court will ultimately say, because your Mayor or Superintendent will be in the crosshairs otherwise. Even with a favorable SCOTx ruling, Abbott has ratcheted up the political pressure enough that it may not be worth it to them regardless. The harm they’re doing for the sake of winning the support of a depraved bunch of Republican primary voters is incalculable.

And two, this is now another example of Abbott and Paxton making “you can’t sue me” a key point of their governance. The “heartbeat” abortion ban atrocity is perhaps the highest-profile example, but Paxton’s claims that he’s exempt from the state’s whistleblower laws because he’s not a “public employee” are another, and it’s just as pernicious. It’s all about wielding power without responsibility or constraint. If trends hold to form, look for bills introduced by Republicans in the next Lege to include clauses about why the state can’t be sued by anyone who claims to have been harmed. At least, that will be the case until we have Democrats in the executive offices. At that point, it will be game on for limiting what they can do. But for now, we’re not supposed to sue them for anything because…well, just because.

Bexar mask mandate put on hold again

SCOTx has entered the chat, again.

The Texas Supreme Court has temporarily blocked San Antonio and Bexar County’s mask mandate, marking the latest update in a flurry of court battles over mask requirements statewide.

The decision comes after an appellate court earlier this month allowed the local mask mandate to stand, despite Gov. Greg Abbott’s executive order barring public entities from instituting such requirements. The new ruling is a win for the governor and Attorney General Ken Paxton, who had asked the high court earlier this week to step in and stop local officials.

[…]

In the order, the high court noted that the lawsuit does not consider whether people should wear masks or whether government officials should compel them to do so. Rather, the justices said, the case concerns which levels of government can make those decisions.

“The status quo, for many months, has been gubernatorial oversight of such decisions at both the state and local levels,” they wrote. “That status quo should remain in place while the court of appeals, and potentially this court, examine the parties’ merits arguments to determine whether plaintiffs have demonstrated a probable right to the relief sought.”

The court has yet to make a final decision on the matter, which could take weeks or months. Several similar but separate lawsuits, including two in Dallas and Houston, are also currently being litigated.

See here, here, and here for some background. This only affects the Bexar County case – the litigation in Harris and Dallas and other places have not yet been taken to the Supreme Court. It seems likely that they would go the same way, but as noted so far SCOTx is not inclined to let Abbott and Paxton jump the line on this, so they have to go through the process first. Also, this is a stay of the temporary restraining order, which means that if and when the judge in Bexar County issues a temporary injunction, as the judge in Dallas County just did, the SCOTx stay will become moot and Abbott and Paxton will have to go through the process again, to get another stay while that ruling is appealed. Isn’t this fun?

Also, as a friendly reminder, never believe a thing Ken Paxton says:

I know you didn’t need to be told that, but it never hurts to say. The Trib and the Current have more.

The real reason (that we already know) why Greg Abbott hates mask mandates

He’s pandering to the base. I mean, duh!

When Texas had its first big surge of COVID hospitalizations, Gov. Greg Abbott responded by shutting down bars and mandating masks.

As the second surge hit, Abbott put in place an automatic trigger to restrict the operating capacities of businesses and halt non-emergency surgeries to free up hospital beds in areas with high hospitalizations.

But now as the state hits a third surge, Abbott — who faces re-election early next year — is doing none of that. Instead, he is suggesting that people wear masks when appropriate and get vaccinated, but only if they want, and vowing not to enact any more mandates.

“There’s no more time for government mandates,” Abbott declared last month in an interview with KPRC in Houston. “This is time for individual responsibility.”

While that has confounded health officials and many big-city leaders as hospitals fill up with patients with COVID-19, the election results for 2020 offer a glimpse into why Abbott, who tested positive for the virus this week, isn’t about to change course.

A Hearst Newspapers analysis shows a strong correlation between the counties with the lowest vaccination rates for COVID-19 and counties that voted heavily for former president Donald Trump, whose supporters Abbott will need to win his primary next spring.

Trump won 80 percent or more of the vote in each of the 10 Texas counties with the lowest vaccination rates.

[…]

Internal polling by the Abbott campaign shows he has been watching his numbers closely — particularly those related to COVID and the border.

Public polling shows 85 percent of Texas Republican voters approve of how Abbott has handled the state’s response to the virus, according to a Quinnipiac University poll released in late June. That poll also showed that while 51 percent of all Texans believe schools should be able to require masks, just 21 percent of Republicans agree. And there is a huge divide based on where people live. Almost 60 percent of respondents in cities supported schools requiring masks; in rural Texas, it’s under 40 percent.

We’ve talked about this stuff before when polls have come out that show a policy like masking has majority support, due to huge support from Dems and majority support from indies but low support from Republicans. Abbott only cares about the latter group, and he’s trying to keep the crazies in line and away from the even bigger wackjobs in the primary race. He’s betting that it won’t cost him in the general, or at least that it won’t cost him too much. There’s only one way to find out. I wish there were something more subtle or profound to say than that, but that’s pretty much it. What you see is what you get.

(I don’t mean for this post to be in any way critical of the Chron story, which is well reported. It’s always good to review the data and see if it actually confirms the thing that we all say we know, because sometimes it doesn’t and we need to reorder our thinking. Here there were no surprises, but it’s still good to put numbers on it.)

Perry the pitchman

How can we miss you if you won’t go away?

We’ll always have corndogs

Former Texas Gov. Rick Perry on Monday jumped into the middle of the debate over mask mandates in public schools by trying to sell state officials on a product from a company in which he has a financial interest.

The Republican led a nearly hour-long press conference a the Texas Capitol on Monday that sounded more like an infomercial as he tried to convince state leaders to buy a brand of air filtration products from a company — Houston-based Integrated Viral Protection — that he acknowledged he has “a part” in.

When asked how much of a part, Perry replied: “Well, that’s none of your business. I’m not a public official anymore.”

And yet there you are using the Capitol as your own personal Etsy platform, as if that were a normal thing for non-public officials to do. Or anyone, honestly, though as we know the vast majority of the commerce that happens in that building does so in a far more discreet manner. But if we were going to ask you questions about your little side hustle, after we got to the ones about whether this thing is an effective and cost-effective mitigation strategy (masks are pretty cheap, after all), we’d then have to ask about the questionable characters that are also involved. But hey, you’re just a private citizen who only wants my tax dollars and not my vote, so I guess we’re done here.

Dallas County gets its injunction

Another big win.

Clay Jenkins

A district court judge has sided with Dallas County Judge Clay Jenkins in his dispute with Gov. Greg Abbott over the county’s mask mandate, allowing the mandate to stay in place.

Judge Tonya Parker issued a temporary injunction Wednesday on Abbott’s order that public entities such as cities, counties and schools can’t issue mask requirements or mandates. The injunction allows Jenkins’ mask order — and the mask requirements of local school districts — to continue, for now.

Parker in her ruling said that Jenkins has shown that Dallas County residents “will suffer probable imminent and irreparable injury through County Judge Jenkins being precluded from exercising his authority” to require masks in public.

The judge noted that the highly transmissible delta variant threatens to overwhelm the healthcare system and has increased hospitalizations and death in Dallas County.

“Each of these bases for probable imminent and irreparable injury independently supports the issuance of the requested temporary injunction,” the ruling said.

The temporary injunction will return Jenkins to “the position he was in” before Abbott’s executive order that barred face mask requirements, the ruling said.

Parker set a hearing for Jan. 10 to review the temporary injunction, though attorneys for the state could file an appeal to Parker’s ruling sooner than that.

See here for the background. A copy of the ruling is here, and you can see Judge Jenkins doing a media call about this here. This will be appealed, of course – one presumes that Paxton and Abbott have learned their lesson and will go through the appellate courts first – and we’ll see how long that takes. It may be that at the least SCOTx is less inclined to grant emergency relief. We’ll know when it gets to them. For now, a win for the good guys.

On a related note, Harris County Attorney Christian Menefee sent out an interesting press release that notes some differences between what Ken Paxton says in public about mask mandate bans and what he’s been saying in court about them.

In GA-38, the Governor banned school districts and local officials from mandating masks, and stated local officials who issue such safety measures would be subject to a “fine up to $1,000.” In response to recent mask mandates imposed by local officials, Attorney General Ken Paxton has stated publicly—and repeatedly—that his office will enforce Governor Abbott’s mask mandate ban. He and Governor Abbott joined together in stating that “any school district, public university, or local government official that decides to defy [the Governor’s mask mandate ban] will be taken to court.”[1] His office has compiled a list of “government entities unlawfully imposing mask mandates,” designed to intimidate those entities into compliance.[2] He has sent letters to many on that list, threatening them with enforcement.[3] He has tweeted several times he intends to sue these entities, most recently saying “I will defend TX Law & sue every entity that violates it. We will win!”[4]

Despite these public statements, the Attorney General admitted to the courts hearing the lawsuits brought by local officials and school districts that his office does not and cannot enforce GA-38, nor can he seek the $1,000 fine provided in the order. His office has stated plainly that “[n]either Governor Abbott nor Attorney General Paxton will be enforcing GA-38.”[5] Instead, the Attorney General acknowledges that only local district attorneys can enforce GA-38—he has claimed that entities like Harris County, other counties/cities, and certain independent school districts cannot sue the Governor and the Attorney General because they have “alleged no credible threat of prosecution by local district attorneys, who would be the ones enforcing GA-38.”[6]

Menefee added: “I presume the Attorney General is telling the truth in his court filings. He should be telling everyone else the same thing and letting local governments and school districts continue doing what they can to stop the spread of COVID-19, especially among our children.”

Go view the document to see the footnotes; the last two refer to the AG’s own filings in the cases involving Harris County and others. I mean, it’s not like anyone should have expected the truth from Ken Paxton, but it’s still bracing to see it laid out like that.

Greg Abbott remains COVID’s best friend

It’s hard to even know what to say.

Gov. Greg Abbott on Wednesday announced an executive order banning COVID-19 vaccine mandates regardless of a vaccine’s approval status with the U.S. Food and Drug Administration.

He also said he was adding the issue to the agenda for the current special session of the Texas Legislature.

The order comes two days after the FDA granted full approval to the Pfizer vaccine. That raised questions about the fate of a previous Abbott order that prohibited vaccine mandates, but only for those under emergency authorization.

Abbott’s latest order is simple, saying “no governmental entity can compel any individual to receive a COVID-19 vaccine.” The order preserves exceptions for places like nursing homes and state-supported living centers.

At the same time, Abbott asked lawmakers to consider legislation addressing whether state or local governments could issue vaccine mandates and, if so, which exemptions should apply.

“Vaccine requirements and exemptions have historically been determined by the legislature, and their involvement is particularly important to avoid a patchwork of vaccine mandates across Texas,” Abbott said in a statement.

[…]

There specifically appeared to be the fresh potential for cities, counties and school districts to require their employees to get vaccinated against COVID-19. San Antonio Independent School District had already announced mandatory employee vaccinations, prompting a lawsuit from Attorney General Ken Paxton.

District officials said Wednesday they will move forward with the mandate — despite Abbott’s latest order.

“We strongly believe that the safest path forward as a school district is for all staff to become vaccinated against COVID-19,” the district said in a statement.

See here for some background, and here for a copy of the order. As the story notes, this would prevent government entities from ordering their employees from getting COVID shots, though as you can see that’s already being challenged. Private employers are not affected by this, so if you work for one of the increasing number of them that are imposing COVID vax mandates, you’re out of luck. A bill passed during the regular session forbids businesses from requiring proof of vaccination from their customers, though that doesn’t take effect until September 1 so Harry Styles can still do what he wants.

I don’t think this is anywhere near the end of it. The same arguments being made about mask mandate bans – successfully, so far – by multiple counties and school districts is that the Disaster Act of 1975 doesn’t actually give Abbott this power. That would be equally true for vaccine mandate bans, I would think. That doesn’t mean the courts, by which I mostly mean the Supreme Court, will eventually accept that argument, just that these same entities will give it a try. The federal government will have a say as well, and let’s not forget the federal lawsuit, too. We’re also going to have an election next year, and we have the option of electing a Governor who wants to fight against the COVID virus instead of fighting for it. There’s a lot more of this story to be written. The Current and the Chron have more.

Back to SCOTx for the mask mandate ban

Brace yourselves.

Following an unfavorable outcome at an appellate court, Gov. Greg Abbott asked the Texas Supreme Court to block the mask mandate in San Antonio and Bexar County.

A Bexar County district judge issued a temporary order on Aug. 16 allowing the city and county to require masks in city and county buildings and public schools. That order keeps the mask mandates in place until December, when a trial is set for the case. Attorney General Ken Paxton, on behalf of the state, appealed that order immediately to the 4th Court of Appeals, but a panel of judges upheld the local mask mandate last Thursday.

Paxton took that decision to the Texas Supreme Court on Monday, arguing in the filing that the 4th Court of Appeals’ ruling adds to the confusion over mask requirements in Texas, and asked for “urgent” action.

Paxton wrote that the 4th Court’s action “upends, rather than preserves, the status quo. The court of appeals’ decision thereby compounds the widespread confusion over mask mandates in Texas and frustrates the state’s ability to cohesively address the pandemic.”

The 4th Court of Appeals had judged keeping a local mask mandate maintains the status quo, as a previous temporary restraining order granted on Aug. 10 first put the mandates in place in San Antonio and Bexar County.

Paxton also argued that the state’s high court must take quick action because other cities and counties are being granted their own temporary orders allowing them to require masks despite the governor’s executive order prohibiting that.

See here and here for some background. The 4th Court of Appeals issued its order denying the request for a stay on the same day that the Supreme Court batted back the request it had received in the Harris County case. They could act quickly or they could sit on this and wait for action from other courts, because Lord knows there’s a ton of litigation out there.

Speaking of other litigation

A Dallas County judge today will decide whether Texas Gov. Greg Abbott has the authority to prevent local officials from imposing public health measures like mask mandates. It’s the latest in a dramatic and fast-moving court battle over the issue in the state.

At today’s hearing, the judge will likely hear evidence and testimony about the pandemic’s impact and the efficacy of mask-wearing to stop the spread of the COVID-19 delta variant as well as legal arguments about the Texas Disaster Act.

Dallas County Judge Clay Jenkins and his legal team, who are requesting a temporary injunction against Abbott’s order, say mask-wearing is the best way to save lives and slow the pandemic while they wait for people to get the vaccine. They’ll also argue that Jenkins, the county’s chief administrator who has emergency management powers, has the legal authority to issue executive orders to mandate such rules.

“We need protection for citizens in Dallas County, we need protection for the economy of Dallas County,” Charla Aldous, one of Jenkins’ attorneys, said at the hearing Tuesday morning. “The bottom line: We are here because Judge Jenkins wants to do his job.”

Abbott and Texas Attorney General Ken Paxton say the governor’s executive order, GA-38 — which bans mask mandates — is legal because the Texas Disaster Act gives him the power to ban Jenkins and other local officials like school districts from requiring masks.

Benjamin Dower, a lawyer with the Texas Attorney General’s Office, said the state would produce no witnesses and that the testimony from Jenkins’ witnesses weren’t relevant to temporary injunction hearing.

“None of this is actually relevant to the matter the court has to decide,” Dower said. “This is really a question of law, not fact.”

Judge Tonya Parker, of the 116th Civil District Court, will decide today whether to grant a temporary injunction barring the governor’s order. She previously granted a temporary restraining order doing just that.

The restraining order hearing was to prove whether there would be harm if Abbott’s ban were enforced. The temporary injunction hearing scheduled for this morning is to decide whether the decision should be more permanent. The judge will hear evidence on the matter, but Jenkins’ legal team must still prove immediate harm from Abbott’s order.

See here and here for some background; yes, all of this litigation is hard to keep track of. This post is likely to be already out of date by the time it publishes in the morning. I’ll update it then. Hold onto your butts in the meantime.

UPDATE: No news on the Dallas case yet. Maybe by this time tomorrow.

More teenagers are getting vaccinated

Good, but not enough in itself.

As a third COVID wave coincides with the back-to-school season, more Texas teenagers are getting the vaccine — but health experts say they need to see shots increase in even larger numbers to protect children from the delta variant.

Vaccinations have gone up recently among all Texas age groups, especially for those under 50, and they’ve more than doubled over the past six weeks for 12- to 17-year-olds.

In the last week of June, about 36,000 Texans under 18 got a shot — the lowest point to date — but that number shot up to 86,000 two weeks ago and remained there last week, according to new data from the state health department.

The jump is promising for public health experts, who stress that vaccines are the best way to avoid severe illness and slow the spread of the coronavirus. Still, youth vaccination rates are the lowest of all age groups in Texas, with just 49 percent of those under 18 getting at least one shot, compared to much higher rates for their elders.

“The percent of adolescents that are eligible for vaccination and have been vaccinated, certainly in Houston and in Texas, is still quite low,” said Dr. Stan Spinner, the vice president and chief medical officer for Texas Children’s Pediatrics and Texas Children’s Urgent Care in Houston. “Yes, the numbers are going up. That’s encouraging. But they’re not going up fast enough.”

About 46 percent of 12- to 15-year-olds, who have been eligible for the Pfizer vaccine since May, have received a shot. Roughly 55 percent of 16- and 17-year-olds have gotten the shot, according to the health department data.

Meanwhile, the number of pediatric COVID cases and hospitalizations has exploded — more than 500 children are currently hospitalized with the virus in Texas. Children account for about 20 percent of all positive COVID tests at Texas Medical Center, Spinner said.

“They are the major component of the population that’s vulnerable,” he said. “They have not been able to get vaccinated, and we know kids get it. We’re seeing it. It’s not a myth. We’re seeing it in larger numbers than ever.”

The increase in vaccinations is unequivocally good, I want to be clear about that. But there are still two concerns. One is that the rate of increase is not enough. About one-fourth of all Texans are under 18, which means in absolute terms between seven and eight million people. Not all of them are currently eligible for the vaccine, but at a rough guess it’s probably two to three million. Even at 100K shots a week, it’ll take us months and months to get to a sufficient level of immunization. We need to increase that 86K figure by a factor of at least five, maybe even ten.

And two, as we well know, while even the first shot conveys some extra level of protection from COVID from the get-go, it takes a month from the first shot to be really protected. We need to be doing more in the here and now to help mitigate the spread of this plague. We all know the drill – masking, avoiding indoor gatherings, social distancing – but as long as our malicious Governor and malignant Attorney General are doing everything in their power to prevent those things, we’re going to continue putting everyone in a maximal amount of jeopardy. We’ve already seen high infection rates in school districts that have been open, and several districts forced to close down in person instruction in the short term. We know what needs to be done. It’s Greg Abbott and Ken Paxton and Dan Patrick who want to stop us from doing them. We can’t let them put our kids, and ourselves, in such danger.

HISD starts its year

Good luck, kids. You too, parents.

For the second straight year, Houston ISD is set to welcome back nearly 200,000 students in the midst of a pandemic.

The similarities between last year and Monday’s reopening end there, however.

HISD entered the 2020-21 school year with COVID-19 infections and hospitalizations in Harris County on a downward slope. Nonetheless, the district began the year online and did not open its campuses until October. Nearly half its students finished the school year learning remotely even as case numbers had waned toward the end. Those who returned to campus remained masked up, socially distanced, and in some cases, behind plexiglass.

This year, the district is plunging right in, offering limited remote learning to vulnerable kids, requiring face masks but relaxing social distancing requirements while the number of COVID cases and hospitalizations are rising higher than ever, driven by the highly contagious delta variant and a lagging vaccination rate in Harris County.

Many of those cases involve young people, including some under 12 unable to be vaccinated. Eighteen percent of all the new cases in the Texas Medical Center this month have been children, President and CEO Bill McKeon said.

A look at COVID numbers in the surrounding districts, most of which have been open for less than two weeks, provides a glimpse into what the largest school district in the state could face when it opens its doors Monday.

A week and a half into the school year, Conroe ISD reported 1,487 students and 143 employees were isolated with symptomatic or test-positive COVID-19. Fort Bend ISD disclosed 536 total cases among students and staff. At Spring ISD, officials had 139 active student cases on the seventh day back.

On Friday, HISD had 157 active cases. The district finished last year with 2,037 total cases among students and another 1,600 among staff, according to state figures.

“We are really shoveling water out of the boat as we go because the cases are going up. The cases are jumping into the boat while we are shoveling them out of the boat,” HISD Superintendent Millard House II said of the region’s surge. “We are doing the best job we can, being as strategic as we can — keeping students and staff first in every decision that we make.”

It is what it is at this point. I forget where I saw it, but I came across the observation that HISD and other school districts were planning over the summer to emphasize making up for lost ground this year, and instead they’re having to deal with another form of the pandemic. The school year starts as the case rate is as high as it’s been since February, young kids still can’t be vaccinated, and the district is fighting to be able to enforce its mask mandate. I’m happy with the way Superintendent House has handled this so far, and I’m cautiously hopeful that we can get through the worst of this and be in a good place when we do. If you have schoolkids like I do, good luck and stay safe.

The approval and the mandates

As I’m sure you’ve heard by now, the FDA has given its final approval to the Pfizer vaccine for COVID-19. That should mean a lot of good things, but among them it should mean broader vaccine mandates are now in play.

The U.S. Food and Drug Administration’s full approval of the Pfizer vaccine Monday is cracking open the door for Texas cities, counties and school districts to compel their employees to get vaccinated against COVID-19 — moves previously blocked by Gov. Greg Abbott.

Abbott had banned public schools and local governments from enacting their own vaccine mandates. But the governor’s executive order specifies that the ban on mandates applies to COVID-19 vaccines that are under emergency authorization — a designation that no longer applies to the Pfizer two-dose vaccination.

Already, one major school district is pressing forward with its plan to require vaccinations for teachers and staff.

Pedro Martinez, superintendent for San Antonio Independent School District, called for mandatory employee vaccinations last week — drawing a lawsuit from Attorney General Ken Paxton, who accused the district and Martinez of breaching Abbott’s ban on vaccine mandates.

But with the FDA’s approval, San Antonio school officials are moving forward with their vaccine requirement for district employees.

In a statement, Martinez called the FDA approval “a positive step forward in the fight against COVID-19 nationwide and a step forward in helping keep schools safe for learning here at home.”

Here’s Superintendent Martinez on CNN discussing his fight against Greg Abbott over this. Most of the fights so far have been about mask mandates, but as we noted recently, San Antonio ISD has notified its employees that they must get vaccinated, which has drawn a lawsuit from Ken Paxton. Which, apparently, has been withdrawn now, as the executive order against vaccine mandates only covered “vaccines administered under an emergency use authorization”.

Here’s more from the Chron.

The Pfizer vaccine’s change in status appears to give cities, school districts and universities a way around the governor’s ban.

“Receiving a COVID-19 vaccine under an emergency use authorization is always voluntary in Texas and will never be mandated by the government, but it is strongly encouraged for those eligible to receive one,” Abbott’s most recent executive order reads.

A spokeswoman for Abbott did not immediately respond to a request for comment on Monday.

The update means San Antonio Independent School District, which was sued by the state after requiring its employees to get the shots by Oct. 15, is still moving forward with its mandate. The district had clarified late last week that it would not compel workers to get a vaccine that wasn’t fully approved by the FDA.

Attorney General Ken Paxton touted that as a win in a news release Monday, distributed less than an hour after the FDA granted full approval.

“State law could not be clearer: ‘No governmental entity can compel any individual to receive a COVID-19 vaccine administered under an emergency use authorization,’” Paxton said in the release. “But San Antonio ISD tried to play by its own set of rules. Thankfully, we stopped them.”

San Antonio school officials say the full authorization now allows the district to go ahead with its requirement that all employees get the shots by mid-October, they say. In his clarification statement last week, Superintendent Pedro Martinez had stipulated that the timeline would only change if the FDA hadn’t fully authorized the vaccine by Sept. 10.

Hey, if you want to declare victory while you’re surrendering and retreating, it’s fine by me. Just keep on surrendering and retreating, that’s all I ask.

The remaining questions are 1) What about Moderna and J&J; 2) What will other government entities do about this new ability; and 3) What about the mask mandates? In short,

1) “In May, Pfizer and BioNTech submitted their license application. Moderna began its application in June, and Johnson & Johnson said it will begin the process later this year.” As such, I’d assume the Moderna approval will come sometime in September or October, and J&J will be later than that. But most people have Pfizer or Moderna shots, so that’s the main thing.

2) My guess is they will move more slowly, but once the first domino falls I’d expect others to follow quickly. Note that this will be about mandates for local government employees, not residents. It’ll help, but it won’t apply to everyone.

3) Not the same thing, so we’re still waiting for the lawsuits to play out.

In the meantime, go tell all your vax-hesitant family, friends, neighbors, co-workers, acquaintances, and whoever else that now is the time for them to get their shots. It’s all officially approved, there’s no need to wait any longer.