North Texas Daily

Disability Rights Texas has filed the first federal lawsuit against Gov. Greg Abbott, alleging his executive order banning mask mandates puts students with disabilities at risk.

The federally mandated protection and advocacy agency is representing 14 child plaintiffs and claims that Abbott, Texas Education Agency Commissioner Mike Morath and Texas Attorney General Ken Paxton are violating Title II of the Americans with Disabilities Act. Title II of the ADA prohibits discrimination based on disability in all services, programs and activities provided to the public by state and local governments, according to ada.gov.

“The parents we represent are desperate for their children to be able to safely access public education,” said Dustin Rynders, supervising attorney for Disability Rights Texas. “Some are staying home to remain safe, not getting the in-person education they really need. Others are going to school under duress but are constantly worried about the life-threatening consequences of contracting the virus.”

The lawsuit comes after Abbott issued executive order GA-38 in late July, which reaffirmed previous policy stating no government entity, including school districts, can require or mandate an individual to wear a face-covering.

On Aug. 17, DRT filed the suit in the U.S. District Court for the Western District in Austin. The trial is set for Oct. 6.

DRT and the individual plaintiffs argue that children with disabilities need to be able to receive instruction and services safely in school districts. The group’s suit states many disabled students have underlying health conditions and are at high risk for illness and even death due to COVID-19. Medical conditions such as cerebral palsy, down syndrome, moderate-to-severe asthma and diabetes lead to a higher risk in an individual for severe illness or hospitalization from COVID-19.

The U.S. Department of Justice filed a statement of interest in the DRT’s case. The document notes the plaintiffs’ argument that “there are no practicable education alternatives for students with disabilities who cannot safely return to school in person.”

If the plaintiffs prove their case it “would establish that the state’s implementation of executive order GA-38 has the effect of denying them an equal opportunity to participate in and benefit from the in-person instruction offered by their public schools” according to the DOJ document. The state would have an obligation to make “reasonable modifications” to its ban on mask mandates in schools to avoid subjecting students with disabilities to unlawful discrimination.

“Governor Abbott cares deeply about the health and safety of disabled students, as he does for all Texas students,” said Renae Eze, press secretary and senior communications advisor for Abbott, in an email to the North Texas Daily. “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.”

The TEA did not respond to the Daily‘s request for comment.

A spokesperson for the U.S. Department of Education said the department can not comment due to pending litigation. However, they provided a letter to the Daily from the Office for Civil Rights that was sent directly to Morath.

The letter announced that OCR was opening an investigation into “whether the TEA may be preventing school districts in the state from considering or meeting the needs of students with disabilities as a result of Texas’s policy that prohibits school districts and individual schools from requiring the use of face masks to reduce the risk to students and others of contracting COVID-19 in school.”

Locally, Julie Zwahr, Denton Independent School District’s chief communications officer, said since DISD is not involved in the lawsuit the district can not comment on the litigation. Zwahr said the district will have to wait until the lawsuit is settled to act accordingly. DISD currently has a recommended mask policy in place.

Featured Image: Bells hang behind the UNT Office of Disability’s door on Oct. 5, 2021. Photo by Jami Hitchcock