Kids with disabilities challenge mask ban

Texas gov.’s order violates rights, federal lawsuit says

AUSTIN, Texas – Opening a new legal front against Texas Gov. Greg Abbott’s ban on mask mandates, a disability rights group has filed a federal lawsuit arguing that the prohibition should be struck down for violating the Americans with Disabilities Act.

The lawsuit, filed in Austin by Disability Rights Texas on behalf of 14 children with cerebral palsy, asthma and other conditions that put them at a higher health risk, said Abbott’s executive order banning mandatory masks prevents their safe return to school amid a worsening COVID-19 outbreak.

The result is an “unlawful barrier” that is preventing school districts from providing a safe learning environment for their most vulnerable students, the lawsuit said.

“Having to make a choice between my daughter’s education or her life — what kind of choice is that?” said Julia Longoria, whose 8-year-old attends school in San

Antonio and is part of the lawsuit.

Longoria said her daughter, identified as JR in the lawsuit, has asthma, a growth hormone deficiency and attention deficit hyperactivity disorder and needs in-person instruction to succeed in school.

JR’s health is at risk if schools open at full capacity with masks optional while the highly infectious delta variant is producing a surge in COVID-19 infections, the lawsuit says.

Lawyer Tom Melsheimer said the ban on mandatory masks requires parents to choose between exposing medically fragile children to a severe illness or keeping them at home, where they receive a fraction of the education and lose interaction to students without a disability.

“Either outcome is a violation of students’ rights … and both are wholly avoidable,” said Melsheimer, one of the lawyers with the Winston & Strawn law firm who worked on the lawsuit at no charge.

Abbott, insisting that Texans, not governments, are in charge of health decisions, issued a July 29 executive order that banned cities, counties, school districts and public health officials from requiring that masks be worn indoors.

Filed Tuesday night, the lawsuit seeks a temporary restraining order, leading to a more permanent ban, blocking enforcement of Abbott’s order, arguing that it violates anti-discrimination language in the Americans With Disabilities Act and the U.S. Rehabilitation Act, which prohibits the exclusion of students with disabilities from public education programs and activities.

The decision to enforce mask wearing should be left to school districts and local public health officials “as they determine is necessary,” the lawsuit said.

Lawyers said this was the first time Abbott has been sued in federal court over his mask policy. The 14 students also sued Mike Morath, commissioner of the Texas Education Agency.

Abbott’s mask order also has been challenged in several state courts, leading to six temporary restraining orders, some of which have been blocked by the Texas Supreme Court, allowing local mask mandates, particularly in schools where children under age 12 cannot receive the COVID-19 vaccine.

Texas Attorney General Ken Paxton argues that Abbott’s emergency powers during a declared disaster give his executive orders the “force and effect” of a state law. Opponents disagree, and that issue remains before the Supreme Court.