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Ken Paxton Is Suing Multiple Texas School Districts Over Mask Mandates. But Are They True Mandates?

 Texas Attorney General Ken Paxton.
Texas Attorney General Ken Paxton.

From Texas Standard:

Some school districts in Texas are asking students and staff to wear face masks while on campus, despite the governor's executive order banning mask mandates. Texas Attorney General Ken Paxton is, once again, weighing in on the matter. On Tuesday, he filed lawsuits against nine more school districts in an attempt to uphold the governor's ban on district mandates.

But constitutional law expert Dale Carpenter says Gov. Greg Abbott's executive order might not be as ironclad as Paxton may argue. Carpenter is the Judge William Hawley Atwell Chair of Constitutional Law at Southern Methodist University.

At the heart of the matter is the lack of clarity over who has authority in a health emergency. Carpenter says Paxton's lawsuits hinge on the argument that the governor is the ultimate authority in such situations, under the 1975 Texas Disaster Act. Abbott has exercised that authority throughout the pandemic; his executive order banning local mask mandates is just one example. But local jurisdictions argue they have similar power under the law.

"The school districts and the counties I think would say, we also have power to deal with public health emergencies, and we're given that power under statute as well, so we have the authority to act," Carpenter said. "And then the question becomes, whose authority is greater, whose authority will prevail?"

The other snag is that while some districts have so-called mask mandates, many aren't actually enforced; they're more like firm requests. Without enforcement, Carpenter says Paxton's lawsuits might be moot.

"If the school district issued a directive telling people you should wear masks, that isn't a problem. I think if it told them you must wear masks, maybe that's a problem," he said.

Carpenter expects the matter to ultimately be decided by the Texas Supreme Court, after Paxton's lawsuits and school district appeals work their way through the state's lower courts. In the meantime, he says districts will likely continue the mask mandates they already have in place.

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Rhonda is the newest member of the KUT News team, joining in late 2013 as producer for KUT's new daily news program, The Texas Standard. Rhonda will forever be known as the answer to the trivia question, “Who was the first full-time hire for The Texas Standard?” She’s an Iowa native who got her start in public radio at WFSU in Tallahassee, while getting her Master's Degree in Library Science at Florida State University. Prior to joining KUT and The Texas Standard, Rhonda was a producer for Wisconsin Public Radio.
As online editor for KUT News, Wells Dunbar covers news in Austin, Central Texas and beyond. Before joining the KUT family, Wells served as staff writer and news blog editor at The Austin Chronicle, and covered the Texas Legislature for Gallery Watch. Hailing from El Paso, Wells is a longtime Austin resident whose interests include technology and social media, film and music, and spending quality time with his wife and cat.
Caroline Covington