Abbott’s mask mandate ban mostly toothless
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 to impose $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 published a list of more than 90 noncompliant cities, counties and school districts, is fighting in court with at least six of them and has 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 last month said 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 recently chose not to open an investigation into the matter in Texas, even as it launched probes of five other states with active bans.
The conflicting local rules and governor’s orders — along with a morass of preliminary court decisions — have caused widespread confusion among parents and left
it open for the more than 1,000 Texas school districts to do what they want in the short term.
There have been 73,749 cases of COVID-19 among Texas schoolchildren since early August, state data shows, and 16,213 among staff. Numbers peaked in the week of Aug. 22, with more than 40,000 positive cases that week alone.
Still, Abbott keeps saying he is holding his ground on an issue he has made a priority, despite the increasing number of school districts defying him.
“Their perfect world is just to put out the mandate to tell the world they’re cracking down on activist governments trying to strip away their individual liberties,” said Harris County Attorney Christian Menefee, who is fighting in court against Paxton to keep its mask mandate in place. “But then when lawsuits are filed, they kind of pick and choose what lawsuits they’re engaging with.
“It’s perfect because they can have their cake and eat it, too.”
Renae Eze, a spokeswoman for Abbott, reiterated that the governor believes now is the “time for personal responsibility” rather than mask mandates.
“We are all working to protect Texas children and those most vulnerable among us, but violating the governor’s executive orders — and violating parental rights — is not the way to do it,” she said. “The governor’s executive orders, having the full force and effect of law, are enforceable by state and local law enforcement, and our office continues working with the office of the attorney general to protect the rights and freedoms of all Texans. The best defense against this virus is the COVID vaccines, and we continue to strongly encourage all eligible Texans to get vaccinated.”
Abbott’s approach to the situation is politically beneficial to him as he faces conservative primary challengers, several political scientists said, and if he were to endorse mask mandates, it could be harmful to any presidential hopes he has for 2024.
But in the long run, they warn that a situation where local governments feel empowered to openly flout Abbott’s orders could be damaging to him.
“This is a political liability, especially as it drags on,” said Brandon Rottinghaus, a political science professor at the University of Houston. “The longer this drags on, the harder for the governor to explain his position and continue to hammer local governments on the decision.”
‘It’s a mess’
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.”
At a House Public Education Committee hearing last month, Rep. Steve Allison, a San Antonio Republican, acknowledged there’s “an appearance of dysfunction” in government over the mask orders and Abbott’s ban.
The committee met that night to consider dueling bills that would either ban mask mandates or empower school districts to enact them. The sponsors of each of the bills — Rep. Harold Dutton, a Houston Democrat, and Rep. Jeff Leach, a Plano Republican — said they were considering merging their bills into one allowing schools to require masks but also allowing parents to opt out, as with childhood vaccine requirements.
There’s a “healthy tension” in conservative thought between local control and individual freedom, said Brendan Steinhauser, a Republican political consultant, and Abbott is attempting to strike a balance and allow parents to make the ultimate decisions for their children.
“It’s complicated, it’s patchwork, it’s a mess. You’ve got all these different entities just sort of battling back and forth over this stuff,” said Steinhauser, who does not work for Abbott. “I think he has put his marker down; he has invested time and money and oxygen on this policy and this message, and I haven’t seen him really backtrack.
“I think that you’re in pretty safe grounds as the governor of this state to say that generally communities should decide (and) parents should ultimately be the arbiters of this decision.”
Support for mandates
A Texas Politics Project poll conducted from Aug. 20 through Aug. 30 found that 56 percent of Texans supported mask mandates in school, while 35 percent opposed. A national Ipsos poll last month found 66 percent of Americans disapproved of bans on local mask mandates. The same poll, however, found that 57 percent of Republicans support them.
The Centers for Disease Control and Prevention recommends indoor masking for all teachers, staff, students and visitors to K-12 schools, including those who are vaccinated, in light of the threat posed by the more contagious delta variant. As of Sunday, nearly 59,000 people in Texas had died of COVID-19, which is now claiming the lives of more than 200 people a day.
Abbott is facing several conservative primary challengers as he seeks his third term, and his name has been tossed around — along with Florida Gov. Ron DeSantis — as a potential 2024 presidential contender.
“He backed himself into a corner once he prohibited masks, once he didn’t allow municipalities to impose these mandates, so on and so forth,” said Jeronimo Cortina, another political science professor at the University of Houston. “In that particular stance, there’s no way he can backtrack himself and go somewhere else, because he would be attacked — especially by his primary challengers.”
However, Cortina noted that when the United Kingdom saw a surge in delta variant cases, the influx in cases decreased nearly as rapidly as it arrived. As long as Abbott “holds the fort,” he’s also biding time for the Texas wave to subside.
Then Abbott could say, “‘I told you so. We don’t need government mandates; we need personal responsibility; we don’t need the government telling you what to do,’ ” Cortina said.