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As of Aug. 8, there are 2.7 million confirmed cases in 254 counties. The average number of cases reported over the past seven days shows how the situation has changed over time by de-emphasizing daily swings. The number of new cases reported drops on weekends, when labs are less likely to report new data to the state. Photo courtesy of The Texas Tribune

Resistance is growing to Gov. Greg Abbott’s May executive order that Texas schools can’t require masks. An advocacy group is suing to block the order, and three of the state’s biggest districts want to mandate masks anyway.

When Fort Worth ISD goes back to school Monday, masks will be required. The school board switched from recommending them to mandating them after pediatric hospitalizations in North Texas set a record high Tuesday and after receiving a letter from 120 Cook Children’s physicians worried about maskless students. At the most recent school board meeting, there were about 20 speakers, all in favor of a mask mandate. Fort Worth will join the Dallas and Austin school districts in requiring masks. Houston ISD Superintendent Millard House II has said he also wants to issue a mandate, and a school board meeting for Texas’ biggest district to discuss the idea is scheduled for this week.

The Southern Center for Child Advocacy, a nonprofit education group, filed a lawsuit Sunday night in Travis County against Abbott and his executive order prohibiting school districts, governmental bodies, or any public or private entity that is receiving or will receive public funds from requiring masks.

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In the absence of a statewide mask mandate, the group seeks to give the power to enforce mask wearing back to local school districts, said Hank Bostwick, volunteer center coordinator and lawyer.

Abbott’s order, issued when coronavirus cases were on the decline, limits school officials’ ability to respond to the pandemic, Bostwick said, which, at the moment, is in the middle of what some health experts are calling a third wave. With the delta variant being more infectious, cases are on the rise and more children are being sent to hospitals.

Abbott stated earlier this month that he was past the point of issuing government mandates to slow the spread of COVID-19, even as the delta variant has sent cases and hospitalizations skyrocketing across the nation. Instead, he said it is time for personal responsibility, which he emphasized when he removed the statewide mask mandate earlier this year.

“Going forward, in Texas, there will not be any government-imposed shutdowns or mask mandates,” he said. “Everyone already knows what to do.”

Texas State Teachers Association President Ovidia Molina said in a statement that she urges other school districts to join Fort Worth, Dallas, and Austin in requiring masks and also called for Abbott to rescind his executive order.

“We agree with Dallas Superintendent Michael Hinojosa that it is within a school district’s discretion to take steps to ensure the health and safety of its students and employees,” Molina said.

The lawsuit claims that Abbott is overeaching his authority and that his emergency powers should be used to take proactive steps and “not to advance an anti-mask political agenda that has no discernible basis in the data regarding the COVID-19 contagion rate.”

Bostwick said believes Abbott’s order is “purely political gamesmanship and has nothing to do with the health and safety of Texas children or their teachers.”

The lawsuit highlights that people of color are still lagging behind in vaccination rates and getting these families back in schools without proper protection makes them vulnerable to an increased rate of infection.

“The threat to the health and safety of Texas public school students and teachers is imminent and real,” the lawsuit states.

The group also claims that the governor is in violation of Texas education code because children with disabilities “are entitled to learn and interact with their non-disabled or typical peers in a safe and healthy educational environment.”

Abbott’s order not allowing masks means some of these students may be unable to attend school in person if masking is not required, the lawsuit claims.

But as the school year begins, some schools are openly defying the governor’s order.

“Governor Abbott’s order does not limit the district’s rights as an employer and educational institution to establish reasonable and necessary safety rules for its staff and students,” Dallas ISD said in a statement. “Dallas ISD remains committed to the safety of our students and staff.”

A spokesperson for the governor did not immediately respond to a request for comment.

House, the Houston superintendent, said last week that he expects pushback on his attempt to impose a mask mandate but that “if we have an opportunity to save one life, it’s what we should be doing.”

Under Abbott’s order, entities that defy the governor are subject to a $1,000 fine, but it is unclear how this would apply to school districts.

In addition to mandating masks, the Fort Worth school district will also conduct contact tracing and require teachers and students to quarantine for 10 days after encountering someone who’s tested positive for COVID-19.

Last month, the governor said parents should decide whether their children should mask up and offered no guidance on kids too young to be vaccinated.

The ongoing concern over safely returning to classrooms spurred more than 100 Austin ISD families to form Safe Schools for All to advocate for local control. Member Mike Siegel, an Austin ISD parent of two kids under 12, said the group wants to encourage the Austin school board to take strong action the way Dallas ISD did earlier this week, but at the same time, they want to show support to the board members in fear of state sanctions. To combat a potential legal battle or fines, Siegel said districts across the state need to form a coalition and fight back together.

“When people run for school board, they don’t think of themselves as preparing to go to war with the governor,” Siegel said, “so right now, I just want to give a lot of support to our school board trustees.”

Lana Hansen, mother of two Austin ISD students under 12, said she cannot wrap her head around why Abbott would take away school official’s power to protect their communities.

“We all know that what’s best for Austin isn’t best for Fredericksburg or Lubbock or Houston,” Hansen said. “That’s why we have our own elected officials.”

Concern over COVID-19 has flared over the past months as the delta variant has taken hold, and last Thursday, the TEA announced its guidance, which drew pushback from many parents and advocacy groups.

The TEA said Texas school districts will not be required to conduct contact tracing this year if a student contracts COVID-19, but the agency did allow for remote learning for up to 20 days for students who are sick with COVID-19 or have been exposed to it. If more time is needed, schools can apply for waivers.

Longer-term remote learning has largely been defunded after it was offered at the start of the pandemic, and efforts to allocate funding for it have so far failed in the legislature this year.

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