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

“There may simply be no enforcement mechanism. Well, that means that the so-called requirement or mandate is more metaphysical in nature than it is actually a kind of legal impediment.”

By Rhonda Fanning, Wells Dunbar & Caroline CovingtonSeptember 15, 2021 11:58 am, , ,

School districts across 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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