Children with disabilities sue the Texas governor over his ban on school mask mandates.

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U.S.|Children with disabilities sue the Texas governor over his ban on school mask mandates.

Students and teachers at the Lamar Elementary School in San Antonio, Texas, wore masks last week as required by the school, a policy the state has sought to nullify.
Credit...Matthew Busch for The New York Times
  • Aug. 19, 2021Updated 6:40 p.m. ET

Parents of young children with disabilities are suing Gov. Greg Abbott of Texas over his ban on mask mandates in public schools, arguing that the executive order, signed in July, prevents their medically at-risk children from being able to attend school safely.

The federal lawsuit, filed on Tuesday by the advocacy group Disability Rights Texas, opens another legal battlefront over pandemic policy in the state. Mr. Abbott’s ban suffered a series of setbacks in lower state courts before the State Supreme Court sided with him on Sunday, ruling that he had the authority to impose such a ban. The court has still to issue a final ruling on the ban’s validity.

President Biden announced this week that the Education Department would use its broad powers — including possible legal action — to deter states like Texas from barring universal mask mandates in classrooms.

The new lawsuit contends that Mr. Abbott’s ban violates federal anti-discrimination laws like the Americans with Disabilities Act and Section 504, which prohibit the exclusion of students with disabilities from public education. If the suit is successful, Dustin Rynders, a lawyer for Disability Rights Texas, believes that the case could set a national precedent.

“I think a victory in any court will give school districts a sense of ease in doing what they need to do to protect students,” Mr. Rynders said.

In response to questions about the lawsuit, Governor Abbott’s press secretary Renae Eze wrote in an emailed statement that the governor “cares deeply about the health and safety of disabled students, as he does for all Texas students,” but did not otherwise address the issues the suit raised.

The office of the state attorney general, Ken Paxton, did not immediately respond to repeated requests for comment.

Mr. Paxton has defended the ban in state court, saying that “the Texas Disaster Act clearly states that the governor has the power to guide the state through emergencies, such as the Covid-19 pandemic.”

Mr. Rynders said that the Americans with Disabilities Act’s broad protections apply even during emergencies, noting that shelters opened during natural disasters are required to be accessible to the disabled.

With Covid-19 cases soaring in Texas because of the Delta variant, Mr. Rynders said, parents face an “impossible” choice: risk their children’s health by sending them to school, or risk educational deprivation by keeping them home.

The 14 plaintiffs in the lawsuit are all children under 12, an age group that is not eligible for vaccination yet. One is Juliana Ramirez, 8. Her mother, Julia Longoria, said Juliana had been begging to go back to her school in San Antonio. Juliana had panic attacks during the pandemic, and her ADHD made her increasingly disengaged from online learning. But Juliana has asthma, and Ms. Longoria is immunocompromised, making a coronavirus infection especially dangerous for them both.

“We could just not send her to school, but that’s just denying her an education,” Ms. Longoria said. “There really wasn’t a good option. Every option put her at risk in some way.”

Ms. Longoria said she was “terrified” for her daughter. She believes masks, along with other safety protocols, would help prevent her daughter from getting sick.

Another plaintiff is Stephanie Paresky’s 8-year-old son, who has spina bifida, epilepsy, ADHD and bronchiectasis, a chronic lung condition that makes him vulnerable to infections.

During virtual learning, Ms. Paresky, a resident of Richardson, said her son fell behind in reading and math because he didn’t receive the same level of one-on-one services as he had before the pandemic. When the new school year began this month, she sent him back to his public school, which is requiring masks in defiance of the governor’s orders. His doctors told her he would not be able to attend safely if masks were not being worn.

Lawyers with Disability Rights Texas said they were confident of a favorable result in the case. But Mr. Paxton, the state attorney general, has said that he would continue to defend the governor’s mask-mandate ban, saying that “any school district, public university, or local government official that decides to defy the order will be taken to court.”

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