Judge Says Texas Can't Make Disabled Kids Choose Between School And COVID, Tosses Texas Mask Ban

Twenty years ago, we did not foresee a day when we'd find ourselves saying, "Oh, thank God for George W. Bush's judicial appointees!" But a lot of crazy shit has happened in the past two decades, and here we are, bloody grateful for US District Judge Lee Yeakel and the rest of the cranky septuagenarians of his era, who look better every day compared to the Federalist Society toddlers Trump and McConnell jammed in there.

Yesterday Judge Yeakel struck down Texas's school mask ban for violating the Americans with Disabilities Act (ADA), which was signed by Dubya's daddy, as well as Section 504 of the Rehabilitation Act of 1973. Because immunocompromised kids, like all American children, have the right to a free and appropriate public education, and that includes being able to attend school without been sneezed on by everyone else's filthy, unmasked children. Moreover, Texas took the American Rescue Plan school recovery funds, which are explicitly conditioned on helping students return to school safely. And as much Texas would like to argue that its laws pre-empt federal statutes, that's not how any of this works.

The plaintiffs here are seven Texas public school students with disabilities such as spina bifida, cerebral palsy, and Down syndrome. Under the school mask ban signed by Texas Governor Greg Abbott in July, their schools were barred from requiring other students to wear masks, forcing these immunocompromised children to risk their fragile health if they want to attend school at all.

"The spread of COVID-19 poses an even greater risk for children with special health needs," the court wrote, after observing the elevated danger posed to all youngsters by the Delta variant. "Children with certain underlying conditions who contract COVID-19 are more likely to experience severe acute biological effects and to require admission to a hospital and the hospital's intensive-care unit. This includes children with conditions including Down syndrome, organ transplants, lung conditions, heart conditions, and weakened immune systems."

Texas Attorney General Ken Paxton, a defendant in this suit, issued threatening letters promising legal action against school officials in districts that did try to get students to wear masks, and on September 10, 2021, he actually filed suit against six districts over their mask policies.

The plaintiffs argued that Texas's mask ban effectively barred them from school by forcing them choose between staying home or risking serious illness to access public education. The state defendants countered that there was no ADA violation because the individuals were free to come to school like everyone else. But the court disagreed:

As Plaintiffs allege and the evidence proves, the "policy" in this case prevents local school districts from satisfying their ADA obligations to provide students with disabilities the "opportunity to participate in or benefit from" in-person instruction that is "equal to that afforded others," that is "not separate or different" from that provided to non-disabled students, and that is "in the most integrated setting appropriate."

Holding that the law violates the ADA and locks disabled kids out of the schoolhouse, Judge Yeakel enjoined Paxton from enforcing it. Now all these poor kids have to do to go to school safely is survive the fascist goon squad at the Fifth Circuit when these ghouls appeal, and they're home free.


[ET v. Morath, Docket via Court Listener]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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