Justice Department eyes Texas mask mandate ban in lawsuit from disabled students

The Justice Department filed a new statement of interest in a case involving disabled students in Texas who say they are at a heightened risk of catching COVID-19 because of the state's ban on mask mandates in public schools.

“The serious adverse consequences on students with certain disabilities is readily foreseeable. Some parents of children at heightened COVID-19 risk will likely keep their children at home—even though the children could safely attend school if mask protocols could be put in place," the department said in the filing.

More than 48 million children under the age of 12 are still not eligible for the COVID-19 vaccine in the U.S.

According to the American Academy of Pediatrics and the Children’s Hospital Association, the U.S. reported almost 207,000 pediatric COVID-19 cases last week, which marks the fifth week in a row with over 200,000 new pediatric cases reported.

The DOJ is following the lead of the Department of Education, which plans on investigating any infringement on a student's civil rights by banning masks at school.

The Department of Education said the investigation will focus on "whether, in light of this policy, students with disabilities who are at heightened risk for severe illness from COVID-19 are prevented from safely returning to in-person education, in violation of Federal law."

In May, Texas Gov. Greg Abbott ordered a ban on local mask mandates but argued in court that he can’t actually enforce a mask mandate ban himself. The Texas Education Agency (TEA) recently changed its policy to align with Abbott's executive order, banning school systems from requiring students or staff to wear a mask.

"The Lone Star State continues to defeat COVID-19 through the use of widely-available vaccines, antibody therapeutic drugs, and safe practices utilized by Texans in our communities," Abbott said in a statement on the ban. "Texans, not government, should decide their best health practices, which is why masks will not be mandated by public school districts or government entities. We can continue to mitigate COVID-19 while defending Texans' liberty to choose whether or not they mask up."

Disability Rights Texas, a federally mandated protection and advocacy agency for disabled Texans, filed a lawsuit on behalf of 14 children against Abbott and TEA commissioner Mike Morath.

The lawsuit claims that the executive order is "putting students with disabilities at significant risk, is discriminatory, and violates the federal Americans with Disabilities Act and Section 504 of the federal Rehabilitation Act."

The Americans with Disabilities Act of 1990 is a civil rights law that prohibits discrimination based on disability.

The DOJ argues that the ADA guarantees students with disabilities "a full and equal opportunity to do the same and to learn alongside their nondisabled peers, with all the benefits that accompany in-person learning" and a ban on masks in schools infringes on those rights.

"Other parents of children at heightened COVID-19 risk—such as parents who cannot be at home during the day—may have no choice but to send their children to school each day, knowing that their children’s health, and even their lives, may be at risk because those in close contact with their children may not be wearing masks and there is nothing the school can do about it," the DOJ said in a statement.

Suzanne Goldberg, the Department of Education's acting assistant secretary for civil rights, stated in a letter to TEA that the investigation could be resolved if masks were reinstated in schools.