Court rulings buy time for local officials to protect kids from virus
Here’s the key question to ask about Gov. Greg Abbott’s campaign to prohibit school districts, cities and counties from requiring masks indoors in public places, a practice recommended by the Centers for Disease Control and Prevention: Is this about the safety of kids — and the 29 million people he represents?
The delta variant of COVID-19 is spreading like wildfire, leading to packed hospital intensive care units and some 100 deaths a day in Texas. Public health experts recommend wearing masks, even if you’re fully vaccinated and indoors, because the delta variant is so much more contagious. They also say masks are needed to protect vaccine-ineligible students.
Many local officials and school districts get it. The White House and Dr. Anthony Fauci, the nation’s chief infectious disease expert, get it. But Abbott doesn’t seem to — although he did get COVID-19 himself this past week.
We of course wish the governor a speedy recovery. However, his obstinance has led cities, counties, school districts and nonprofits to defy him outright. Localities that are locked in courtroom battles with Abbott and Attorney General Ken Paxton include Harris County; a group of school districts; Bexar County and San Antonio; Dallas County; and Fort Bend County, outside Houston.
Local officials in these jurisdictions, and others, were cheered by a Texas Supreme Court decision on Thursday that allows school districts and some local governments to require masks on their property, for now. This was a ruling on a procedural question, far from the last word, but still. Other good news came from the Texas Education Association, which said it would not be enforcing Abbott’s ban “as the result of the ongoing litigation.”
Such rulings buy time for local officials to continue their fight to require masks — and protect constituents — until the spread of the delta variant can be
stalled.
One local official at the front lines is KP George, a first-term Democrat who is the Fort Bend County judge. County officials late last month could boast that 66 percent of county residents age 12 and older were fully vaccinated, one of the best rates in the state. As Anna Bauman reported, local officials and hospital representatives at a court hearing Thursday painted a dire picture of ambulances waiting outside hospitals, patients stacked up in emergency rooms, and exhausted doctors and nurses.
A district judge then issued a temporary injunction blocking the state’s order and enabling local officials to require masks in public buildings, at least.
“One thing I really know — I wanted to be on the right side of history,” George said Thursday. “I know that I am on the right side of history.”
The all-Republican Supreme Court will likely have the final say on the subject. Still, George viewed the court case in Fort Bend as “an opportunity to do the right thing, when it comes to protecting our citizens, our families, and our most vulnerable, our children.”
And for the time being, at least, local leaders across the state can take advantage of the same opportunity, if they haven’t already.
The governor’s policy is an unpopular one — unless you’re focused solely on the Texans who vote in the Republican primary, as Abbott may be. A new Ipsos poll finds that twothirds of Americans are opposed to the idea of state prohibitions on mask mandates.
How widespread is the ensuing mutiny, in Texas? Paxton is keeping a list of governmental entities that have failed to comply with Abbott’s order and is encouraging people to snitch on any others they hear of, by sending an email to his office.
All told, some 70 governmental entities were on Paxton’s list as of Friday, most of them independent school districts. He vowed Friday that if localities “continue to blatantly disregard state law, I will sue every single one of them.” (Paxton, by the way, remains under indictment for state securities fraud, charges that he has denied.)
Steve Vladeck, a professor at the University of Texas School at Law, reckons that local officials still face an uphill battle in their legal battles.
The Supreme Court of Texas, he explained, didn’t side against the state on the substantive question. It simply concluded that Paxton had skipped a step in the legal process, meaning that the statewide restraining order against Abbott’s executive order remains in effect while Paxton retraces his steps.
The TEA guidance on masks, similarly, isn’t a policy change on the agency’s part; rather, it’s a recognition that a temporary restraining order issued by Travis County District Judge Jan Soifer blocking the enforcement of Abbott’s latest executive order remains in effect, while litigation is pending.
“The real bottom line is that Judge Soifer’s TROs are still in effect today, but they may not be tomorrow,” Vladeck said.
Vladeck thinks it’s more likely than not that the state’s highest court will eventually side with Abbott; after all, he noted, it previously issued stays against local mask mandates issued in Dallas and Bexar County — that’s “more than nothing, when it comes to reading tea leaves.”
At the heart of the case, Vladeck continued, are genuine substantive questions about the scope of the governor’s powers under the Texas Disaster Act of 1975.
“I think we can safely say they’re broad,” Vladeck said. “The problem is they’re surely not limitless.”
Broad, but not limitless: Abbott should remember that the same could be said of his popularity. He has enjoyed generally strong approval ratings throughout his two terms as governor — especially compared to Paxton and Lt. Gov. Dan Patrick, two highly controversial conservatives. That could change quickly, though, if Abbott continues to dig in against common-sense COVID-19 precautions — and Texans continue dying.
“Everyone already knows what to do,” Abbott said earlier this month, speaking to a trade association in Dallas. “Everyone can voluntarily implement the mandates that are safest for them, their families, and their businesses.”
True; some Texans are abiding by their own personal mask mandates, even if they’ve already been vaccinated. Others are not. As a result, his laissezfaire approach has done nothing to slow the spread of the highly transmissible delta variant while local officials like Harris County Judge Lina Hidalgo dangle $100 gift cards to hesitant constituents to get their shots.
As for Abbott, as noted, he was diagnosed with COVID-19 less than 24 hours after spending an evening schmoozing with a maskless gathering of GOP donors at a fundraiser in Collin County. In a video message, the governor explained that he’s having no symptoms. In addition to being fully vaccinated, Abbott has access to excellent health care and is receiving monoclonal antibody treatment as he isolates.
Still, the governor’s positive test is a reminder that no one is entirely safe from COVID — and, of course, many Texans have fewer resources to draw upon, if they contract the virus.
Which helps explain why local leaders across Texas seem to be doing everything in their power to protect the communities they serve — because the governor sure isn’t.