The Oldest Blog
A first amendment blog for school administrators and attorneys.
Austin Court of Appeals Affirms Court Order that Texas Governor Can’t Enforce Mask Mandate Ban Against School Districts and Community Colleges
School districts and colleges around Texas are closed this week for Spring Break. Although a welcome reprieve from the hustle and bustle of the spring semester, for many educators, Spring Break also reminds us of the beginning of the COVID-19 pandemic. In addition to the instructional and logistical challenges of the past two years, many Texas schools have faced legal challenges from the Governor and Attorney General regarding their efforts to protect students, teachers, and their families by requiring masks on school campuses. Yesterday morning, the Third Court of Appeals in Abbott v. La Joya ISD, et al. weighed in on the Governor’s authority to prohibit Texas schools and community colleges from issuing mask mandates.
In August 2021, school districts and community colleges that educate approximately 1 million Texas students sued the State of Texas, the Governor, and the Attorney General to challenge the validity of Executive Order GA-38’s prohibition on mask mandates (the La Joya ISD, et al. case). The plaintiff schools sought temporary and permanent injunctive relief to enjoin enforcement of the Governor’s prohibition of mask mandates in Texas public schools. The plaintiff schools argued that (1) the Governor exceeded his authority under the Texas Disaster Act (“TDA”) in banning mask mandates in Texas public schools; and (2) the Governor has no authority to suspend the Texas Education Code, which grants school boards the authority to govern and oversee the management of public schools. The plaintiff schools advocated for the long-held Texas tradition of local control over public schools. In response to the lawsuit, the trial court in Travis County issued an injunction against the Governor, finding the plaintiff schools had a probable right to relief on their claims.
Yesterday, the Third Court of Appeals affirmed the trial court’s ruling. The Court held that the plaintiff schools are likely to prevail on the merits of their argument that GA-38’s mask mandate ban exceeds the scope of the Governor’s authority under the TDA. The Court found that the TDA does not give the Governor absolute authority to limit the ability of local governmental entities and officials to respond to disasters. The Court also found that the Governor’s suspension authority under the TDA may not be exercised to suspend broad grants-of-authority statutes, like the legislative grant of local control to school boards under the Education Code.
In upholding the temporary injunction, the Court found that the plaintiff schools demonstrated irreparable harm if forced to comply with the Governor’s prohibition on mask mandates, including public health consequences, financial loss (including loss of state funding), and learning loss that would result from further closure of schools in the face of rampant spread of COVID-19. The Court found that the equities weighed in favor of granting injunctive relief, noting that the State presented no evidence to show any adverse impact from the temporary injunction.
The Court also rejected the State’s arguments that the Travis County trial court lacked jurisdiction because: (1) the plaintiff schools asserted facts sufficient to demonstrate the Governor acted ultra vires, or outside the scope of his authority, based on its finding that GA-38’s mask mandate ban was not authorized by the TDA; (2) the plaintiff schools have standing to seek declaratory and injunctive relief that would invalidate GA-38 and allow the schools to exercise their authority to require masks without State interference; and (3) a Government Code provision vesting the Texas Supreme Court with exclusive jurisdiction over suits that seek to “compel performance” by a State executive officer does not apply since the plaintiff schools instead seek to prohibit the State from enforcing an unlawful order.
The State will likely appeal to the Texas Supreme Court, as they have done in lawsuits concerning Bexar County, Dallas County, and Harris County’s mask mandates. For now, this is yet another ruling in favor of Texas public schools’ local control to determine and implement the measures necessary to address and mitigate the effect of COVID-19. If you have question about this opinion or the interplay of mask mandates and state and federal laws, contact Elizabeth Humphrey, Kathryn Long, or Holly McIntush. We will continue to follow and provide you updates as litigation on this topic continues to develop.
