Attorneys with Disability Rights Texas claim the ban violates law meant to protect students with disabilities.

Update: This is a developing story and will be updated throughout the day.

The fight over Texas’ ban on school mask mandates goes before a federal court today.

Attorneys with Disability Rights Texas, who filed the first federal lawsuit over the ban in mid-August, allege that the prohibition puts students with disabilities at risk.

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The organization claims that Gov. Greg Abbott’s executive order violates federal anti-discrimination law, which prohibits the exclusion of students with disabilities from public education programs and activities.

“If school districts are unable to implement COVID-19 protocol as they each deem appropriate, parents of medically vulnerable students will have to decide whether to keep their children at home or risk placing them in an environment that presents a serious risk to their health and safety,” the attorneys suing wrote.

Disability Rights Texas represents students younger than 12 with disabilities and underlying medical conditions “which carry an increased risk of serious complications or death in the event that they contract COVID-19″ including children who have Down syndrome, moderate to severe asthma, and chronic lung or heart conditions.

School districts cannot fulfill their obligations under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act because they can’t implement “basic COVID-19 prevention strategies” based on individual needs, according to the suit.

The group also argues that the American Rescue Plan Act of 2021 that allocated billions to schools for pandemic recovery preempts the governor’s order. The federal law “explicitly authorizes” using the money for public health protocols in line with guidance from the Centers for Disease Control and Prevention, the attorneys note.

The CDC recommends universal masking inside schools, regardless of vaccination status. Children under 12 are not yet eligible for the vaccine.

The state has pushed back on Disability Rights Texas’ claims, noting that those suing have not exhausted all of the administrative processes to receive education. They also claimed that risk of exposure is not exclusion.

“While universal masking is one option to reduce the risk of COVID infection, it is not the only option,” the state’s attorneys wrote. “Plaintiffs have failed to present any evidence or even make the generalized assertion that they have attempted to work with their individual schools to develop [individual plans] for these students to reduce their risk of exposure to Covid.”

Abbott banned government mask mandates earlier this year, although some school districts —including Dallas and Richardson ISDs — have bucked his order and required them anyway. Attorney General Ken Paxton has sued several of the defiant school systems.

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Several Texas districts have also challenged Abbott’s order in court. Trustees from Dallas ISD, the first district to officially instate a face-covering requirement this school year, voted in August to join an existing multidistrict lawsuit.

In the midst of this legal battle, federal officials with the U.S. Department of Education opened an investigation into Texas’ ban on mask requirements. Investigators plan to examine whether the Texas Education Agency is preventing school systems from meeting the needs of students with disabilities.

The federal department launched similar investigations in other states earlier in the summer but waited to do so in Texas because the state’s ban was tied up in litigation and not being enforced. But the Biden administration changed course after updated TEA public health guidance stated that per the governor’s order, schools couldn’t “require students or staff to wear a mask.”

The U.S. Department of Justice has also waded into the Disability Rights Texas lawsuit, filing a statement that supports the organization’s assertions. DOJ attorneys allege that Abbott’s order puts students with disabilities in an “untenable position”

“The serious adverse consequences on students with certain disabilities is readily foreseeable,” DOJ attorneys wrote. “Some parents of children at heightened COVID-19 risk will likely keep their children at home—even though the children could safely attend school if mask protocols could be put in place.”

Since the school year started, the state has recorded more than 172,000 positive COVID-19 cases among students, exceeding the total student case count for the entirety of 2020-21.

The DMN Education Lab deepens the coverage and conversation about urgent education issues critical to the future of North Texas.

The DMN Education Lab is a community-funded journalism initiative, with support from The Beck Group, Bobby and Lottye Lyle, Communities Foundation of Texas, The Dallas Foundation, Dallas Regional Chamber, Deedie Rose, The Meadows Foundation, Solutions Journalism Network, Southern Methodist University and Todd A. Williams Family Foundation. The Dallas Morning News retains full editorial control of the Education Lab’s journalism.

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