Judge’s disappointing decision on mask mandate leaves Fort Worth ISD alone in Texas

Editor’s note: Updated Thursday afternoon to reflect the judge’s decision to extend the temporary restraining order.

The flurry of lawsuits and court orders over mask mandates across Texas is confusing, but the Fort Worth school district may be in a unique situation.

FWISD appears to be the only Texas district under a court order that blocks it from requiring masks of students and staff. Other districts’ mandates have been challenged, but orders telling them to stand down are on hold while the courts sort the mess out.

Fort Worth’s unusual situation is the result of a temporary restraining order issued by Tarrant County state District Judge John Chupp at the request of a few parents who sued over Superintendent Kent Scribner’s mask order. Chupp heard arguments on the order Thursday, and it’s disappointing that he decided to extend it and prevent the district from taking steps to increase the safety of children, teachers and staff against the fast-spreading COVID-19 delta variant.

Chupp didn’t have to dismiss the lawsuit. The parents’ arguments will get a full hearing, but in the meantime, he should have erred on the side of caution and allowed the mask mandate.

The entire state is in an odd legal limbo. Gov. Greg Abbott issued a sweeping order in July that, among other things, prohibits local governments from requiring masks. He’s been sued by several, and the state has asked the Texas Supreme Court to sort the matter out.

Joy Baskin, director of legal services for the Texas Association of School Boards, said she wasn’t aware of another district with a local judge blocking a mask mandate, though similar lawsuits may be popping up.

Two important developments have flown under the radar. The high court, which still seems likely to side with Abbott and the sweeping authority that the Legislature granted him, nonetheless kept in place a lower-court ruling against the governor. It was done as a matter of legal procedure, not on the substance of the case. Last week, the Texas Education Agency told districts that the provisions regarding masks in Abbott’s order won’t be enforced while litigation proceeds.

Taken together, it amounts to a quiet, if unintentional, pause that gives school districts an opening to have mask mandates, probably for at least a few weeks. That may be long enough to get through the worst of the current COVID-19 surge.

The school board association prefers local control for districts, especially given the variance in how the pandemic is affecting different parts of the state. Baskin said some districts with mandates are currently enforcing them, but it’s a difficult decision for local leaders.

“There are very few school districts where the public is of a single mind on the matter,” she said. “It does put pressure on the elected school board officials to make a decision that will not be universally popular.”

Chupp’s order is unusual in that it comes in response to parental litigation. Four FWISD parents argue that their children will suffer “irreparable injury” to their constitutional rights by facing a mask mandate. They contend that a mandate should have come from a school board vote, not the unelected superintendent. And they complain that the hastily issued mandate is vague and allows for no religious or health exemptions.

FWISD has no choice but to comply with Chupp’s order. Perhaps it will have to come back with a clearer set of rules, approved by the school board. But the heart of the case is that the mandate violates Abbott’s order. While appellate courts sort that out, Chupp, a Republican first appointed by Gov. Rick Perry in 2009, should let Fort Worth officials use their best judgment.

The most important case in the works is one in Travis County, where a judge has blocked enforcement of Abbott’s order. It could affect FWISD’s case, but only tangentially, Baskin said.

“Travis County is not the boss of Tarrant County, but it would certainly give a substantive reason to seek change” to the local order, she said.

Mask mandates make sense, but parents and educators alike should not over-invest in them. Research is limited but suggests modest value to cloth or paper masks, the type the vast majority of people wear, in school settings.

Improved vaccination rates are still our best hope. Now that federal regulators have given full approval to one vaccine, school districts should require employees to be vaccinated, though Abbott maddeningly declared Wednesday that governments should not be able to do so. Let’s hope districts challenge that, too.

Mask mandates are a good option, too. Chupp should see the wisdom of letting Fort Worth ISD join its counterparts around the state.

This story was originally published August 26, 2021 at 5:08 AM.