By Kevin Lungwitz
August 20, 2021
There have been significant legal developments since we published the COVID Update article in the August 2021 issue of TEPSA News. As discussed in the August issue, the governor’s May 18, 2021 Executive Order GA-36 banned local governments, including school districts, from mandating the wearing of masks. The governor renewed the ban on mask mandates with EO GA-38 on July 29, 2021.
Since then, the COVID Delta variant has spiked causing COVID cases to rapidly rise, including among school-age children, and Texas hospitals have the fewest available ICU beds since COVID began in 2020. This has caused numerous cities, counties, and school districts to issue mask mandates in opposition to the governor’s orders, which in turn, has caused confusion among school communities.
Do I enforce my school board’s mask mandate? Or do I abide by the governor’s orders?
Generally, you should follow the lawful directives of your employer. This includes a mask mandate passed by your county or city which your school district tacitly or actively adopts.
You said “lawful” directives. Is my school district mask mandate lawful?
Probably, at least for now. On August 19, the Texas Supreme Court temporarily refused to hear this issue when asked by the state’s attorney general, leaving in place a local court ruling which affirmed the legality of school district mask mandates. The high court indicated that an intermediate court of appeals should hear the issue first, so we will have to wait and see what the near future holds in store. Also on August 19, the TEA stated it will not enforce EO GA-38 (banning mask mandates) until the litigation is settled. In a brief to the Texas Supreme Court, TASB believes the governor’s orders banning mask mandates are invalid and that local school boards have the legal right to make this decision. So, whether the governor is right, or school boards are right, is a question that might be answered in the coming days or weeks. Stay tuned.
Do schools have to report COVID cases to staff and parents?
Yes. Initially this school year, schools were only required to report positive cases to local and state health authorities. But on August 19, TEA issued new guidance requiring staff and parents to also be notified. See TEA COVID guidance, 8-19-21.
Could I be held legally liable for enforcing either the governor’s order or my school district’s mask mandate if one or the other turns out to be wrong?
Very unlikely. Professional school employees have a good measure of legal immunity for acting in good faith and are supposed to know about “clearly established” law. The law here is anything but clearly established. The other general rule to follow is, when in doubt, err on the side of reasonably protecting student and campus safety, and usually the law and the courts will follow.
* Published August 20, 2021. Because all cases are different, this article is not legal advice. Always consult a lawyer if you have a specific legal question.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
