Fourteen children with disabilities and their families have filed a federal lawsuit against Texas Governor Greg Abbott and Texas Education Agency Commissioner Mike Morath, arguing that the statewide ban on mask mandates puts up an “unlawful barrier” for children with disabilities to access public education.
The lawsuit, filed Tuesday night by Disability Rights Texas on behalf of 14 children with disabilities (and other conditions that put them at high risk of serious illness or death if they are exposed to COVID-19), contends that the GOP governor’s executive order banning mask mandates “violates the federal Americans with Disabilities Act and Section 504 of the federal Rehabilitation Act.”
The anonymous plaintiffs, ranging in age from 4 to 11, are seeking a federal temporary restraining order to stop enforcement of the mask mandate ban, which would allow public health authorities and school district officials to require masks indoors.
They hope the temporary stop would lead to a permanent ban, arguing that the order violates anti-discrimination language in federal law. In addition to the alleged violation of the Americans With Disabilities Act, Section 504 of the Rehabilitation Act prohibits “deny[ing] access to programs, services, benefits or opportunities to participate as a result of physical barriers,” which includes children’s access to public education.
On May 18, Abbott, who recently confirmed he has COVID-19, issued an executive order banning governmental mask mandates, saying that “Texans, not government, should decide their best health practices.” The order bars counties, cities, school districts and public health authorities from requiring mask wearing.
Many districts have sought workarounds through dress code loopholes or temporary restraining orders, via state courts, that have been struck down. This is the first federal lawsuit that seeks a restraining order from a federal judge.
Tom Melsheimer, an attorney for the plaintiffs, said the ban forces parents to choose between endangering their medically fragile children and keeping them home where they receive fewer services, need parental supervision and have less access than their peers.
“Either outcome is a violation of students’ rights…and both are wholly avoidable,” Melsheimer, who is working on the lawsuit pro bono, told the Austin American-Statesman.
The families of the plaintiffs say they are just trying to ensure a safe learning environment for their children.
“Having to make a choice between my daughter’s education or her life—what kind of choice is that?” Julia Longoria, whose 8-year-old daughter is a plaintiff in the lawsuit and goes to school in San Antonio, told the American-Statesman.
According to an online list kept by Texas Attorney General Ken Paxton, 48 Texas school districts, charter schools and seven counties have implemented mask mandates in defiance of the executive order.
Newsweek reached out to both Abbott and the plaintiff’s attorneys for comment but did not hear back before publication.