Who enforces Texas’ school mask mandate ban? A federal judge wants to know

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Texas Attorney General Ken Paxton has sued at least 15 school districts over their mask mandates and threatened legal action against dozens more.

He shoots off frequent missives on Twitter, detailing his work to ensure school leaders follow the rule of law — specifically, Gov. Greg Abbott’s executive order prohibiting face covering requirements.

But in a federal court hearing this week, a disagreement before the judge centered on who exactly is enforcing the mask mandate ban in Texas schools and questions of why the Texas Education Agency was alerting the attorney general’s office of those who had such a requirement.

Disability Rights Texas is suing Paxton, the Texas Education Agency and Education Commissioner Mike Morath, saying district leaders should be able to decide COVID-19 safety measures for themselves. Abbott’s order prohibiting mask mandates, they argue, harms vulnerable students entitled to certain educational rights under federal law.

But in court documents, lawyers representing the state say Disability Rights “sued the wrong defendants here.” They argue that TEA doesn’t enforce the governor’s executive order — and that Paxton’s office doesn’t have an “enforcement connection to Governor Abbott’s emergency orders.”

Instead, they said, “these orders are enforced by other officials, most naturally the appropriate local district attorney.” Private citizens can sue districts — and some have — like Paxton has, they argued.

Dustin Rynders, a Disability Rights attorney, said this is a “dishonest argument.” Rynders’ team showed that the TEA sends memos to the attorney general’s office, alerting them of districts that are allegedly in violation of the governor’s order.

“TEA is acting as the detective for the attorney general’s office on an overzealous enforcement campaign against schools and, really, against children,” Rynders said.

Judge Lee Yeakel also questioned the state’s argument, positing that their lawyers had built an “elaborate house to avoid people gaining access to courts.” He repeatedly asked state lawyers who families could sue if they had issues with the governor’s order.

Rynders’ team projected tweets from Paxton on the wall of the courtroom Wednesday showing the attorney general announcing legal action and celebrating when districts reversed their mask mandates after his office contacted them. “I will put an end to these unconstitutional mask mandates,” he vowed Sept. 10. 

Paxton’s office also maintains an online list of defiant districts and solicits tips from the public about those violating the governor’s order.

Court documents outline that Paxton’s office sent letters to superintendents flouting Abbott’s directive, saying they would “face legal action taken by [his] office to enforce the Governor’s order and protect the rule of law.”

Meanwhile, the state education agency’s public guidance for schools has shifted amid evolving executive orders and litigation

The agency alerted superintendents last month that the ban on mask mandates was not being enforced because of the ongoing legal battle. Then, TEA officials reversed course again, saying in the most recent public health guidance that districts cannot require students or staff to wear a mask, based on the governor’s order.

The state’s attorneys argued public health guidance isn’t an enforceable “rule.”

Yeakel didn’t issue any opinion on the case Wednesday, but said he would work to do so quickly.