EducationJudicialLocal NewsSome Texas School Mask Mandates Remain Despite Fifth Circuit Order

Some major ISDs claim the recent ruling does not directly affect their mandates, although the injunction it overturned was statewide.
December 6, 2021
Though an appellate court has restored Governor Greg Abbott’s ban on school mask requirements, mandates will remain at some independent school districts (ISDs) through the new year.

For example, Austin ISD, Houston ISD, and Dallas ISD will all continue to enforce mask requirements.

“The Fifth Circuit’s recent order did not affect our mask mandate. The Travis County District court’s order upholding our mandate remains in effect and is pending on appeal to the Texas Third Court of Appeals,” an Austin ISD spokesman stated.

“We expect a decision from the Third Court next year.”

The superintendent of Dallas ISD told press that the district’s mask mandate will remain until Martin Luther King Jr. Day. Houston ISD likewise said that the ruling will not change its current mask requirement.

The Texan Tumbler

“The ruling does not impact the requirement that students, staff, and visitors must wear masks while on HISD property. This mandate remains in place for HISD schools,” the district stated.

“HISD, along with other school districts, is a party to a separate lawsuit in state court that is not based on the federal laws protecting students with disabilities. Rather, it is based on state law, and the right of local districts to make health and safety decisions regarding their students.”

Nonetheless, the recent ruling has persuaded some districts to end their mask mandates. San Antonio ISD, which has been fighting Abbott’s mask mandate in state court, announced that it would comply with the Fifth Circuit’s order.

Abbott forbade school mask mandates first in May with his executive order GA-36 before doubling down in July with executive order GA-38, which threatens schools that require masks with fines of up to $1,000.

Around the beginning of the school year, school districts and charter networks around the state began defying GA-38 and requiring masks. Attorney General Ken Paxton has sued several school districts in state court over the mandates, and the Supreme Court of Texas has temporarily upheld Abbott’s order more than once. According to his most recent records, he has not sued any charter schools that require masks.

While local governments have been fighting Abbott in state court, another case has been proceeding in federal court.

An advocacy group called Disability Rights Texas sued the state on behalf of seven children with disabilities or fragile immune systems, claiming that Abbott’s mask mandate ban puts them in danger of COVID-19 infection and thus prevents them from going to school. The group also claims that the American Rescue Plan Act (ARPA), a federal COVID-19 relief package sent out by Congress under the Biden administration, authorizes schools to set their own health plans.

Disability Rights Texas won at district court when Judge Lee Yeakel enjoined the state from enforcing Abbott’s order, allowing mask mandates in schools statewide.

However, a panel of judges of the Fifth Circuit Court of Appeals reversed this injunction and ruled on December 2 that the school mask mandate ban will remain in full effect while they consider the case.

Specifically, the judges’ order allows the state to enforce GA-38 against schools, a task that so far has rested solely with Paxton.

Although GA-38 says that the governor may penalize rogue schools with fines, Paxton’s lawsuits seem to be the state’s only method of enforcement so far.

Paxton maintains in court documents that local district attorneys, not the state, are the proper enforcers of GA-38. The Texas Education Agency (TEA), which oversees and regulates the Texas public school system, has told schools to comply with GA-38 but has not taken any disciplinary action to enforce it.

According to Texas government data, students at schools with mask mandates test positive for the coronavirus 0.88 percent less than students at schools without mandates. COVID-19 infection rates have also been dropping every week in Texas public schools since early September.


Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If you’d like to become one of the people we’re financially accountable to, click here to subscribe.

Get “KB's Hot Take”

A free bi-weekly commentary on current events by Konni Burton.

Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.