An hour before Fort Worth ISD Superintendent Kent Scribner announced he would require students and staff to wear masks on campus, a parent made a reasonable prediction about the district’s COVID-19 protocols.
“We know whatever decision you make today will be met with some resistance,” Red Sanders, a supporter of the requirement and father of a kindergartener, said to the school board.
Fort Worth ISD’s mask mandate, and those similar to it in other large urban districts, defies Gov. Greg Abbott’s ban of facial covering orders. The requirements are at a confluence of a legally murky area and partisan politicization, legal and political experts told the Fort Worth Report.
“I think fundamentally everyone’s just trying to do the best they can, but it gets really easy to kind of see these issues through a political lens,” said Dr. Nicholas Rister, a member of Cook Children’s Medical Center’s infectious diseases team in Fort Worth. “And the trouble there is that this disease isn’t political — it’s a disease. It doesn’t see things that way at all. It’s going to do its thing no matter what we say about it.”
Monday, the first day of school in Fort Worth ISD, will likely be a prime example of the rift on masks. Some parents will be glad to send their mask-wearing students back to school. Other parents, though, have vowed their children will not be forced to wear a facial covering.
A group of parents Friday filed suit against the district, seeking to stop the rollout of the mask mandate — a course of action Abbott and Attorney General Ken Paxton said, in a joint statement, they would take against any school district or local government if they issued facial covering orders.
Judge John Chupp of the 141st District Court on Friday issued a restraining order, stopping Fort Worth ISD from requiring students and staff to wear masks. Chupp is a Republican.
“At some point, people are going to have to recognize that requiring face coverings on school-aged children has a cost that exceeds its benefits,” reads a statement from Norred Law, the firm representing local parents.
Fort Worth ISD issued a statement following Chupp’s decision. The district said it will honor the court’s order blocking the mask requirement.
“We believe Tuesday’s announcement regarding masks for students, employees and visitors to our campus was the right thing to do,” the statement reads. “Nevertheless, FWISD strongly recommends that all students, parents, employees and visitors, please, consider the importance of wearing a face mask while we are still in the midst of the pandemic and COVID cases remain high.”
‘Boiling all over the state’
David Coale, a Dallas-based appellate lawyer, said there are many powerful arguments on the governor’s side, but school districts and other local governments also have a case, albeit a narrow one.
Abbott is using the power given to him through the Texas Disaster Act, which was designed for smaller, more targeted emergency responses, such as a hurricane. Typically, county judges would have leeway to handle crises.
The governor, though, can step into a situation like that to bring some uniformity, something Coale said Abbott is doing to handle the COVID-19 pandemic. However, the law was not designed to deal with a seemingly never-ending emergency affecting all 254 counties.
“The governor’s argument that’s a fairly solid one is, look, once you get past the … highly localized level, two things come into play. Not only do you have to do the best thing for the disaster, but you have to have a coordinated response. That’s why (the governor) comes into the picture,” Coale said.
That weakens the arguments for cities, counties and school districts, all of which have the ability to make safety rules and regulations. At the end of the day, the governor trumps local governments because they are part of the larger state government in some form, the appellate lawyer said.
“It’s an uphill battle for any of them — it’s particularly hard for school districts,” Coale said. “School districts aren’t just stand-alone legal entities. They’re also subject to regulation by a state agency, the (Texas Education Agency), and that gives the governor even more authority.”
Late last week, TEA said it would not issue public health guidance because of the ongoing legal battle over the newly imposed mask mandates.
A legal brief by Dallas County Judge Clay Jenkins, though, could provide a path forward for school districts and local governments, Coale said. Jenkins argues, under the Texas Disaster Act, the government has to issue orders to make the situation better.
“The governor has broad authority to respond and to coordinate, but he has to be doing something helpful,” Coale said. The law “didn’t envision a situation where well-recognized functional safety rules the localities want to take, but the governor is preventing them from taking. That’s odd. That’s not what the statute was written thinking of.”
Will that argument work? Coale wasn’t sure, but it’s a starting place for school districts and counties.
Coale stressed these mask mandate lawsuits will make their way to the all-Republican Texas Supreme Court. He expects the justices, who are conservative and believe in a strong executive, to likely take Abbott’s side.
“It’s going to the Supreme Court, and I suspect they’re going to resolve it next week because school is starting and people need to know what the heck they’re doing,” Coale said. “This stuff is boiling all over the state, and that’s why you have a Supreme Court to fix this kind of thing.”
High risk, high reward
James Riddlesperger, a political science professor at Texas Christian University, described the political maneuvering by school districts, other local governments and Abbott as a high-risk and high-reward situation.
The governor is “betting that the delta variety of COVID is not going to explode in a way that happened last summer with regard to the previous variants of COVID and that there will be a relatively short and relatively less deadly appearance of this disease,” Riddlesperger said. “Even if there is a relative spike in cases, his primary constituency will forgive him for that because it’s really an issue of personal accountability and personal personality.”
In that scenario, Riddlesperger explained, school districts’ mask mandates would be unnecessary and classes could have functioned just as well without one.
In another instance, though, districts could come out winning.
“The upside is that the superintendent and the school board are betting that most of the parents of school children in the public schools will be greatly appreciative of the fact that they put the health of the children above the issue of COVID itself,” the political scientist said.
Districts with mask mandates likely need to worry about Abbott possibly threatening to pull their state funding, Riddlesperger said. In Florida, school districts have defied Gov. Ron DeSantis’s mask requirement ban and the Republican warned he will withhold funding.
“Whether the (Texas) governor is going to actually pull the trigger on that kind of Draconian response is really up in the air,” the TCU professor said. “That would be raising the level of conflict even above where it is right now. These monies are seen as money for children, not money to be used as a carrot and a stick regarding masks.”
Divisions on masks exist among Tarrant County legislators. Democrats want it left to local officials to make the call on facial covering requirements, while Republicans prefer to leave it up to individuals.
State Rep. Ramon Romero, D-Fort Worth, supports Scribner’s mask requirement.
“I believe in local control, and a quick overview of the numbers in our community shows there is still a long way to go with vaccinations and herd immunity,” Romero told the Report. “We must also recognize that children learn best when in a classroom.”
In a letter to Mansfield ISD, state Rep. David Cook, R-Mansfield, told trustees and district administrators that concerned parents reached out to him about a possible mask mandate. Parents, he said, know what’s best for their families.
“I strongly believe in personal responsibility and know the parents will come to the right decision,” Cooke wrote. “In my opinion, the parents who believe masks are effective should be allowed to send their children to school with a mask and those that believe masks are ineffective, or even harmful, should be allowed to send their child(ren) without a mask.”
‘Look at all the tools in your toolbox’
Masks help reduce the spread of COVID-19, but are not a perfect solution, said Rister, the infectious diseases doctor.
“Anything we can do to reduce those numbers is really important,” Rister said. “Even knowing that any individual kid, their risk remains pretty low that they’re going to get a severe disease.”
Masking, combined with social distancing, is even more important for children younger than 12 because they cannot be vaccinated against the virus yet, the doctor said.
Opening schools and having children learn in person is “an important goal, but you ask yourself what can we do to potentially reduce the numbers, potentially keep some more kids safe and you’ve got to use what options you have,” Rister said. “Even if they’re not perfect, I think you have to look at all the tools in your toolbox, and this is a big one.”
Rister understands why some parents may be resistant or skeptical about their children wearing masks. Doctors, nurses and medical experts have to address their concerns in one-on-one conversations, he said.
Misinformation and just the sheer amount of material out in the world has made it hard for people to understand what is and isn’t true, Rister said.
“The other thing is fatigue. I think people over time are just so tired of dealing with this, which is very understandable as a person to feel that way,” the infectious diseases expert said. “But, at the same time, we have to remind ourselves that we’re not out of the clear yet.”
Jacob Sanchez is an enterprise journalist for the Fort Worth Report. Contact him at firstname.lastname@example.org or via Twitter. At the Fort Worth Report, news decisions are made independently of our board members and financial supporters. Read more about our editorial independence policy here.