Texas Schools Can Issue Mask Mandates, Federal Judge Rules

Texas Schools Can Issue Mask Mandates, Federal Judge
Rules 1
Matthew Busch for The New York Times

A federal judge ruled on Wednesday that Gov. Greg Abbott’s ban on mask mandates in Texas schools violates the rights of students with disabilities, clearing the path for districts in the state to issue their own rules for face coverings, a decision that could affect more than five million students.

The ruling comes after months of politicized disputes over measures at the state level opposing mask-wearing policies that had been intended to prevent the spread of Covid.

The lawsuit, which sought to overturn the mandate, was filed on behalf of several families of students with disabilities and the organization Disability Rights Texas. They stated that the defendants — the state’s attorney general, Ken Paxton; the commissioner of the Texas Education Agency, Mike Morath; and the Texas Education Agency — had put students with disabilities at risk through their complete erasure of mask mandates.

The governor and some other state officials have maintained that protecting against the virus is a matter of personal responsibility.

Judge Lee Yeakel, who made the ruling in the suit filed in the United States District Court for the Western District of Texas, determined that the order from the governor violated the 1990 Americans With Disabilities Act because it put children with disabilities at risk.

The ruling also prohibits Mr. Paxton from enforcing the order by Mr. Abbott, who has repeatedly opposed Covid-related mandates.

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“The spread of Covid-19 poses an even greater risk for children with special health needs,” Judge Yeakel said. “Children with certain underlying conditions who contract Covid-19 are more likely to experience severe acute biological effects and to require admission to a hospital and the hospital’s intensive-care unit.”

The State Supreme Court has repeatedly allowed the governor’s ban to remain in effect, but the impact of Wednesday’s federal ruling could ripple across the country in similar cases in other states.

Responding to the ruling in a statement, Mr. Paxton said that he disagreed, adding that his office was “considering all legal avenues to challenge this decision.”

Mr. Abbott’s office did not immediately respond to requests for comment on Wednesday night. Mr. Morath office also did not immediately respond.

The lawsuit was first filed in August, at the onset of the fall semester. Disability Rights Texas argued that school district leaders should make their own decisions about mask mandates based on the Covid transmission in their area and on their students’ needs.

The order from the governor, Judge Yeakel said, excluded “disabled children from participating in and denies them the benefits of public schools’ programs, services, and activities to which they are entitled.”

Several school districts had altered or undone their mask mandates since Mr. Abbott’s order.

Mr. Paxton sent letters to superintendents of school districts threatening them with “legal action by his office to enforce the governor’s order and protect the rule of law,” if they did not rescind their mask mandates, according to court documents. On Sept. 10, Mr. Paxton filed lawsuits against six school districts, the documents show.

The Justice Department signaled support for the lawsuit against the state in September, saying in a formal statement that “even if their local school districts offered them the option of virtual learning,” the ban still violated the rights of students with disabilities.

Badru Katumba/Agence France-Presse — Getty Images

As much of the world moves closer to fully opening schools, at least one nation has stuck to keeping them fully or partly closed: Uganda.

Eighteen months into the pandemic, officials in the country have kept more than 10 million primary and secondary school students at home, with no plans to reopen their classrooms soon. And while Uganda’s leaders say that the policy is the safest option, on the ground, the effects of the closures are stark.

The “government has not left schools closed to punish you, but rather, to protect you from harm,” the education minister, Janet Museveni, who is also the country’s first lady, said on Twitter in September. She said that the government did not want to risk having parents become infected by students, who “would become orphans — just like H.I.V./AIDS did to many of our families.”

President Yoweri Museveni said in a televised address last month that parents should expect schools to reopen in January, along with other small businesses like bars, hair salons and recreational centers.

In the meantime, however, young women, abandoning hopes of going to school, are getting married and starting families instead. School buildings are being converted into businesses or health clinics. Teachers are quitting, and disillusioned students are taking menial jobs like selling fruit or mining for gold.

“The government has failed to strike a balance between the lives they are saving and the lives they are losing,” said Filbert Baguma, general secretary of the Uganda National Teachers’ Union.

He noted that public spaces like markets and churches had been allowed to reopen, thus exposing the same students to the coronavirus. “Students are not any better off in terms of protection than when they were in their learning institutions,” he said.

Even Uganda’s government has concluded that the sweeping closures have had a devastating effect.

A report released in August by the National Planning Authority, a government agency, found that “30 percent of the learners are likely not to return to school forever” and that 3,507 primary and 832 secondary schools in the country were likely to close.

In June, the Delta variant contributed to a surge in cases and overwhelmed hospitals, pushing the authorities to suspend gatherings and impose a 42-day lockdown. But the country now has a relatively low infection rate, recording just 67 deaths in October, and is now averaging 372 new cases per day, according to Johns Hopkins University data.

The Education Ministry has tried to compensate by distributing home learning materials and broadcasting radio programs to help children learn remotely.

But Mary Goretti Nakabugo, the executive director of Uwezo, an education organization, said that only 20 percent of families contacted in a recent poll had received the materials. Even those families who had received them rarely made use of them, she said.

Bwengye Elia, a mathematics and physics teacher in the Wakiso district of central Uganda, said that few students could afford to meet school costs on their own.

“Data is expensive, which further limits the percentage of students who can afford to continue learning online,” he said. “Barely any students are learning at all.”

Many students have dropped out to seek work instead.

Mukasa Nicholas, 18, said that he had waited six months for classes to start before moving to Kampala, the capital, to find a job. He now sells medical masks on the street, bringing in about $2 a day.

“If my parents ask me to return to school,” he said, “I will reject them.”

Geoff Forester/The Concord Monitor, via Associated Press

Ten states filed a lawsuit on Wednesday seeking to block the Biden administration’s coronavirus vaccine mandate for health care workers, on the heels of a court decision that temporarily halted the broader U.S. requirement that workers of all large employers be vaccinated or undergo weekly testing.

The new suit, filed in U.S. District Court in eastern Missouri, claims that the rule issued last week by the Centers for Medicare & Medicaid Services “threatens with job loss millions of health care workers who risked their lives in the early days of the Covid-19 pandemic to care for strangers and friends in their communities.”

The 10 states also argue that the rule “threatens to exacerbate an alarming shortage of health care workers, particularly in rural communities, that has already reached a boiling point.” They say any further losses will endanger patients, causing “devastating adverse effects on health care services.”

But the broader point echoes a separate lawsuit brought by many of the same Republican-led states against the private-employer mandate for those with 100 workers or more, contending that the Occupational Safety and Health Administration does not have the authority to dictate such policy.

In announcing the rule, the administration set a deadline of January for all 17 million health care workers to be fully vaccinated at health care facilities that receive government funding under Medicare or Medicaid. Employees of hospitals and nursing homes, along with other medical sites, would not have the option of testing in lieu of immunization.

Federal officials said they could not comment on pending litigation, but the Centers for Medicare & Medicaid Services said in a statement that “there is no question that staff in any health care setting who remain unvaccinated pose both direct and indirect threats to patient safety and population health.”

Legal experts said the agency generally had the ability to establish rules governing the organizations that it pays to deliver care. “C.M.S. has very broad authority to regulate Medicare-certified providers,” said Katrina A. Pagonis, a lawyer specializing in regulatory issues for Hooper, Lundy & Bookman.

Erin J. McLaughlin, a health care lawyer for Buchanan, Ingersoll & Rooney, said the rule was “essentially a condition of participation” in federally funded programs. The government invoked the Supremacy Clause in the Constitution to pre-empt state and local laws when issuing the rule.

President Biden’s call for mandates followed months of pandemic outbreaks as the Delta variant threatened regions of the country, some with low vaccination rates but also others with vulnerable populations like those in nursing homes that had just begun to recover from the devastating death toll of 2020.

Many nursing homes had large numbers of workers who remained unvaccinated even after Mr. Biden announced the plan to mandate immunizations.

Many medical societies came out in favor of strict mandates for health care workers, arguing these employees have a special obligation to keep their patients and colleagues safe. And many large, multistate hospital systems and large nursing home companies began requiring staff vaccination, although others lobbied against blanket requirements.

The 10 states — Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming — claim that the federal government has overreached its authority to dictate what happens in their states.

The administration said that about 40 percent of all hospitals already required vaccinations. About 73 percent of nursing home workers are now vaccinated, according to federal data.

Bess Adler for The New York Times

The National Institutes of Health is prepared to aggressively defend its assertion that its scientists helped invent a crucial component of the Moderna coronavirus vaccine — including taking legal action if government lawyers deem it necessary, the agency’s director said on Wednesday.

Moderna’s vaccine, which appears to provide the world’s best defense against Covid-19, grew out of four years of collaboration with research scientists at the N.I.H.’s Vaccine Research Center. The New York Times reported on Tuesday that the company has blocked three N.I.H. researchers from being named on a key patent application.

Much more than scientific recognition is at stake. If federal researchers were named as co-inventors in the patent, the government would have a nearly unfettered right to license the Moderna vaccine to other manufacturers, which could expand access to it in poorer nations and bring the government millions in revenue.

The agency’s director, Dr. Francis Collins, declined to be interviewed. But speaking to Reuters in advance of a virtual health conference hosted by the news service, he made clear that the N.I.H., the government’s biomedical research agency, was not backing down.

“I think Moderna has made a serious mistake here in not providing the kind of co-inventorship credit to people who played a major role in the development of the vaccine that they’re now making a fair amount of money off of,” he told Reuters. He added: “But we are not done. Clearly this is something that legal authorities are going to have to figure out.”

A spokeswoman for Dr. Collins, Renate Myles, stopped short of saying that the dispute was headed to court.

“Dr. Collins simply stated that N.I.H. is not giving up on our claim that N.I.H. is a co-inventor on the mRNA technology used in the Moderna COVID-19 vaccine, but defers to legal authorities on how this might be resolved,” she said. By legal authorities, she said, Dr. Collins meant government lawyers.

The three government researchers that N.I.H. has been trying to get named alongside Moderna employees as co-inventors worked with company scientists on the genetic sequence at the core of how the vaccine triggers an immune response.

As the virus began to spread in January 2020, scientists at N.I.H. and Moderna worked in parallel over a single weekend to zero in on the gene for the virus’s spike protein. Both teams independently identified the same gene.

Moderna has rebuffed the government’s efforts. In a July filing with the United States Patent and Trademark Office, Moderna said it had “reached the good-faith determination that these individuals did not co-invent” the component.

Moderna’s chief executive, Stéphane Bancel, said on Wednesday that the company was in confidential discussions with the N.I.H. and would communicate publicly if a resolution to the dispute is reached.

“What we just need to work out with the N.I.H. is who are the inventors. And there are very clear rules set out by the law about inventorship, and they are very important to protect the patent,” Mr. Bancel said at a virtual conference put on by Wired magazine.

Moderna has received $1.4 billion from the federal government to develop its vaccine and another $8.1 billion to provide the country with half a billion doses. It is also earning billions in profits from supply deals.

Biden administration officials have said they lack the legal authority to require the company to share its vaccine recipe and technical know-how with manufacturers who could produce it at a lower cost for poorer countries.

After Dr. Collins’s comments were reported, a Moderna spokeswoman, reiterated that the company had concluded that only Moderna scientists came up with the sequence that powers the vaccine.

Ellume, via Associated Press

The Australian company Ellume has expanded a recall of its at-home coronavirus test because of concerns about a “higher-than-acceptable” rate of false positives, the U.S. Food and Drug Administration said on Tuesday.

The recall now includes roughly two million of the 3.5 million test kits that Ellume had shipped to the United States by last month, a substantial increase from the company’s earlier estimate that about 427,000 of those kits were potentially faulty.

It is not clear how many false positives the affected tests have yielded. The issue, which the company had previously traced to a problem with one of the raw materials used in its test kits, does not affect the reliability of negative results.

The F.D.A. categorized the recall, which was first announced last month, as Class I, the most serious type. Use of the tests could have “serious adverse health consequences,” the agency said. People who falsely test positive for the virus may receive unnecessary treatments for Covid-19 and experience delays in being diagnosed with and treated for “the actual cause of the person’s illness,” the agency noted.

“Ellume has investigated the issue, identified the root cause, implemented additional controls, and we are already producing and shipping new product to the U.S.,” a company representative said. “Importantly, not all of the positive results of the affected tests were false positives, and negative results were not affected by this issue.”

Many of the affected test kits have already been used. Consumers can determine whether they have used or purchased one of the affected tests, and request a replacement, online.

Those who try to use one of the affected test kits will be notified in the app that the test has been recalled.

Dr. Sean Parsons, Ellume’s chief executive, said in an interview last month that the company had put additional precautions in place to prevent the issue from recurring.

“I’m very sorry that this has happened,” he said. “We’re all about chasing accuracy, and to have these false positives is disappointing.”

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