More info sought in suit on mask ban

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.

The delay would 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 CDC currently recommends that all people 2 or older wear masks while inside schools.

“By forcing parents and their children to engage in this Hobson’s choice to go to school and get COVID, they are not providing meaningful access” to public education, said Tom Melsheimer, the chief attorney for the disabled kids. This is true for all children in a sense, Melsheimer said, but because it’s particularly true for children with disabilities, it violates federal civil rights law.

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.

“I don’t think the plaintiffs want state troopers enforcing emergency orders,” Dickerson said. “It has never been enforced.”

The plaintiffs pointed out that Paxton has gone to court against 11 school districts seeking injunctions preventing them from establishing mask mandates, and he has also sent a number of letters threatening lawsuits — including one they read in court in which Paxton threatens school district officials, saying they will “face legal action from my office to enforce the law.”

Dickerson replied that there are different types of enforcement of the law.