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Group of Children with Disabilities Sues Texas Governor Claiming Ban on Mask Mandates Is Discriminatory


Texas Gov. Greg Abbott speaks during a border security briefing on July 10, 2021, in Austin.

A group of school children with disabilities is suing Texas Gov. Greg Abbott (R) over his executive order prohibiting mask mandates, arguing that the measure violates federal antidiscrimination laws by preventing students with special needs and underlying medical conditions from safely getting a public education.

The lawsuit was filed in the U.S. District Court for the Western District of Texas on Tuesday by the advocacy group Disability Rights Texas on behalf of 14 students with a variety of conditions, all of whom are under the age of 12 and, therefore, are not eligible to be vaccinated. The students are identified only by their initials in the filing.

The complaint alleges that Abbott’s Executive Order GA-38 violates the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and the American Rescue Plan (ARP Act). It is the first lawsuit filed in federal court that challenges Abbott’s ban on mask mandates, though several other suits have been filed in state court.

“Under Executive Order GA-38 and Public Health Guidance issued by the Texas Education Agency (TEA), 2 school districts are prohibited from considering, on a district-by-district basis, whether to implement basic COVID-19 prevention strategies and thus have been unable to fulfill their obligations under the ADA and Section 504 to these students,” the complaint states. “Governor Abbott’s Executive Order is in irreconcilable conflict with federal law because it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress as set forth in the ARP Act and the Department of Education’s Requirement.”

The suit—which names Abbott, the Texas Education Agency (TEA), and the agency’s commissioner as defendants—seeks a temporary restraining order blocking the ban from being enforced and allowing individual school districts and public health authorities to require masks where they determine such measures are necessary.

The group further asserts that because of the surging infection rates in the state, the parents of many of the most vulnerable children in the state will be forced to keep their kids home instead of sending them to school.

“Because Defendants are preventing Tarrant County public schools from requiring masks for their students and staff—despite the surging number of infections, positivity rates, and hospitalizations due to the hyper-contagious Delta variant—it is simply too dangerous to R.S.’s health and safety for her to return to school without the protections deemed necessary by local and national authorities, which includes universal masking for all persons at K12 schools,” the suit said of one of the children.

Attorney Tom Melsheimer, who is representing the plaintiffs pro bono, said that the order runs counter to recommendations from public health officials and places children with disabilities and their families in an impossible position.

“Under Gov. Abbott’s order, parents of these children face an untenable choice: educate their children at school and expose them to potential severe illness, long COVID, and even death or keep their children home, where they will receive a fraction of their education in one of the least integrated settings available with limited to no exposure to non-disabled peers,” Melsheimer said in a statement released with the lawsuit. “Either outcome is a violation of students’ rights under the ADA and Section 504, and both are wholly avoidable.”

Gov. Abbott’s office did not immediately respond to an email from Law&Crime, but a spokesperson for the governor provided a statement to local NBC-affiliated news station KXAN-TV.

“Governor Abbott cares deeply about the health and safety of disabled students, as he does for all Texas students,” the spokesperson said. “Since his accident that left him paralyzed, the Governor has worked throughout his career to protect the rights of all those with disabilities in Texas.”

Read the full lawsuit below.

[image via Tamir Kalifa/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.