Fort Worth school board meets Tuesday. What happens if it tries to require masks?
The Fort Worth school board is set to meet Tuesday when it will discuss a litany of lawsuits challenging Gov. Greg Abbott’s ban on mask mandates, raising the question of whether members will vote to require masks for students and teachers.
If they do, the attorney representing parents who sued the district over the superintendent’s mandate says he’ll seek the removal of board members who move to require face coverings through court proceedings. There are also questions surrounding whether the district could vote for a mandate as lawsuits play out.
“We have a state law that says there’s no mask mandates in school, and any school board member in this state that votes to break the law should be removed under the Texas Local Government Code,” said Arlington attorney Warren Norred.
Fort Worth Superintendent Kent Scribner had announced Aug. 10 that Fort Worth schools would require face coverings. But a district judge on Friday issued a temporary restraining order blocking the enforcement of the rule after a challenge from parents. A hearing is set for Aug. 26 when a judge will consider a preliminary injunction.
At the school board’s special meeting, members will discuss litigation from across the state related to requiring masks in schools as the delta variant of COVID-19 spreads. School board president Tobi Jackson did not directly say whether the board would vote on whether to issue another mask mandate. She declined to comment on Norred’s removal comments.
Jackson said in a text message the board is meeting with the district’s legal counsel to “see what our options are with respect to mask mandates” and how District Judge John Chupp’s temporary restraining order “prohibits us from mandating masks temporarily.”
Masks strongly encouraged on first day of school
The Fort Worth school district has argued through attorneys that a mask mandate at schools is “a rational measure to reduce the spread of COVID-19 and mitigate the effects of the declared disaster,” and is consistent with the district’s authority to create a safe learning environment. The Centers for Disease Control and Prevention recommends that students, staff and visitors wear masks indoors regardless of vaccination status in light of the delta variant.
The district strongly recommends that students, staff and visitors wear a mask indoors at schools, said spokesperson Clint Bond in an email. Many students wore masks Monday as they came back to school.
Chupp’s order found that Scribner’s rule violated the Texas Open Meetings Act — the law guiding government meeting’s accessibility to the public — because it was issued without a vote or agenda notice.
But the court also found that the mask mandate was “made without authority and actually an illegal act” under Abbott’s executive order. Abbott’s order states that “no governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face covering or to mandate that another person wear a face covering.”
If the board votes to require masks, it would likely tempt “the wrath of the judge,” said Southern Methodist University Law Professor Dale Carpenter.
“I think if they tried to issue another ask mandate by simply providing adequate notice of the meeting under the Texas Open Meetings Act, that still doesn’t comport with a court’s finding that they’ve actually acted illegally under the governor’s executive order,” Carpenter said.
The district could join one of the pending cases related to mask mandates in the state.
“The pro, I suppose, would be that you’ve got a ready made action challenging the governor, and that’s already proceeding,” Carpenter said.
Lawsuits filed across the state
Communities and school districts across the state are in legal battles with Abbott and Texas Attorney General Ken Paxton. The Texas Supreme Court on Sunday ruled in favor of the state in cases in Dallas and Bexar counties, going against the rulings of lower courts that permitted mask mandates.
“Let this ruling serve as a reminder to all ISDs and Local officials that the Governor’s order stands,” Paxton said in a Sunday tweet.
In a hearing Monday in the Bexar County case, a district court granted a temporary injunction against Abbott, San Antonio Mayor Ron Nirenberg wrote on Twitter.
“In simpler terms — our local health authority’s public school mask order remains in effect,” Nirenberg said.
Also on Monday Dallas County Judge Clay Jenkins issued a modified county order that he said is now in compliance with the Supreme Court’s order. It still requires masks in public schools, but removes fines for businesses, Jenkins said on Twitter.
The Dallas school district has said it will continue to require masks because the court’s order affects the county’s order but not the district’s. A hearing in the case is set for Aug. 24 in Dallas County District Court. The appeals process could continue after.
“A wise fiduciary of the school district would let Dallas and the governor hammer that out and just wait for the end of that and stop trying to kick against the goads, as they say,” Norred said.
The Supreme Court’s orders apply to Dallas and Bexar counties, but could be a sign to other counties and school districts that Abbott is likely to prevail on blocking mask mandates, experts say.
“The Supreme Court has signaled pretty clearly that these local jurisdictions do not have the authority to ... require masks,” said Mark Jones a Rice University political science professor.
Austin judge issues statewide order
Still, a conflicting temporary restraining order out of Travis County from Sunday states that Abbott and his agents cannot block mask mandates. The lawsuit’s plaintiff, The Southern Center for Child Advocacy, said in a Facebook post that the order is statewide.
According to a document on the group’s website, Paxton on Monday wrote to the group to tell it “the Supreme Court has spoken.” He asked the group to acknowledge the order siding with it is void. The group in turn said it would dismiss the case if Abbott’s executive order is changed to allow districts to require masks for unvaccinated students and staff and all children 12 and under.
The Texas Attorney General’s office on Monday asked the Supreme Court to reverse the order out of Travis County, but the court declined, and Paxton must file the challenges with the court separately, according to the Austin American-Statesman.
“NO GOVERNMENT IN TEXAS MAY IMPOSE A MASK MANDATE,” Paxton said in a statement Monday afternoon. “Yet too many local officials continue to violate this law. I will sue every single local entity and local official who does. And if they continue to disobey, I will pursue additional legal sanctions.”
Carpenter said it’s unclear whether a trial court in Travis County can countermand the order of a Fort Worth trial court.
“The major thing is, Fort Worth ISD is subject to a direct order from a court on a TRO (temporary restraining order) they cannot enforce a mask mandate,” he said.
The district could argue at the Aug. 26 hearing that they have the authority to issue the mask mandate.
“The safest course legally for the district would be to await that hearing,” Carpenter said.
This story was originally published August 16, 2021 at 5:39 PM.
