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Texas Supreme Court rejects Abbott’s ban on school mask mandates — for now

Texas Gov. Greg Abbott (R) speaks at a news conference in Austin on June 8. (Eric Gay/AP)
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The Texas Supreme Court on Thursday denied Gov. Greg Abbott’s request to block temporary restraining orders on his ban on mask mandates, allowing schools that are requiring face coverings in defiance of the state to proceed.

The court, whose justices are elected and currently all Republicans, cited a provision of the Texas Rules of Appellate Procedure for why the request was denied. The one-sentence order provided no additional details.

The state’s high court rejected the efforts of Texas Attorney General Ken Paxton (R) to block temporary restraining orders issued by Travis County Judge Jan Soifer. Parents in Travis County, home to Austin, with children under age 12 who are not eligible to receive a coronavirus vaccine, filed the orders, saying the Republican governor’s ban on mask mandates was a threat to public health. Soifer barred enforcement of Abbott’s ban, clearing the way for mask requirements in Harris County and eight school districts.

The Travis County judge said she was concerned that Abbott’s executive order was “prohibiting a requirement that the schools and the local authorities and the people who generally Texas relies on to make decisions for its citizens think are necessary.”

Following the state Supreme Court’s order, Paxton’s challenge will be heard by the state Third Court of Appeals, where the majority of the Austin justices are Democrats. Whenever the state Third Court of Appeals rules, that decision is expected to be appealed, which would bring the subject of mask mandates in schools back to the Texas Supreme Court.

Paxton’s office did not immediately respond to a request for comment.

The Texas Supreme Court’s order comes days after it sided with the state on another case, granting a request for a temporary, emergency stay of an appellate court ruling that would have allowed schools to require masks.

The move from the state’s high court happened the same day the Texas Education Agency suspended enforcement of Abbott’s ban in the state’s public school systems. The TEA noted in a public guidance letter that the ongoing court challenges pushed the agency to drop enforcement.

The statewide debate over mask mandates in schools has intensified at a time when the coronavirus has spiked in Texas because of the highly transmissible delta variant and millions who remain unvaccinated.

Abbott, who tested positive for the coronavirus this week, is among Republican governors who have resisted public health mandates aimed at stemming the tide of the virus’s delta variant, saying that parents should decide whether their children wear masks in school. But surging infections and hospitalizations in Texas have left many parents worried about sending their children back into classrooms where others are not masked and could transmit the virus.

Texas Gov. Greg Abbott (R) on Aug. 17 said he tested positive for coronavirus, though he has no symptoms. (Video: @GregAbbott_TX/Twitter)

Texas reported more than 13,700 new coronavirus cases Thursday, bringing its seven-day average for new infections to 16,482, according to data compiled by The Washington Post. Nearly 13,000 people are hospitalized in the state for covid, including more than 3,200 in intensive care units.

Less than 46 percent of the state is fully vaccinated.

Some counties — including Bexar County, home to San Antonio, and Dallas County — have joined school districts in defying the governor’s executive order from last month. Despite the Supreme Court’s previous ruling temporarily upholding the governor’s ban, the city of San Antonio had said Bexar County would maintain its mask mandate as the case proceeded. On Thursday, the state’s Fourth Court of Appeals upheld the mask mandates until a trial date, Bexar County Judge Nelson W. Wolff announced.

“A good victory today,” Wolff said.

Parents and schools have responded to Abbott’s ban in different ways. At least one North Texas school district, the Paris Independent School District, made masks a part of its dress code for the academic year, hoping to exploit a possible loophole in Abbott’s ban. The district, which appears to be the first in the state to use its authority to set a dress code requiring students and employees to wear masks, noted that Abbott’s executive order did not suspend a chapter in the Texas Education Code that gives school districts power to oversee health and safety measures.

Renae Eze, a spokeswoman for Abbott’s office, said to The Post this week that there was “no loophole” in the ban and that “the time for mask mandates is over.”

“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,” Eze said in an email.

The issue surrounding masks at schools has also grown contentious. At Eanes Independent School District in Austin, a parent ripped off a teacher’s face mask while others yelled at another teacher to remove her mask because they claimed it made it difficult to understand what she was saying. The incidents caused Eanes ISD Superintendent Tom Leonard to advise those in the community this week to “not fight mask wars in our schools.”

Soifer, the Travis County judge, has set hearings for next week to see whether the restraining orders should be replaced with injunctions barring enforcement of Abbott’s ban on mask mandates.

Read more:

Masks in schools: Explaining the debate over face coverings in classrooms

Texas Gov. Abbott seeks out-of-state help against covid-19

How to stay safe as coronavirus cases from the delta variant are on the rise