(Bloomberg) -- Texas Governor Greg Abbott should let schools decide whether requiring students and staff to wear masks will help disabled kids safely attend class, a lawyer for a group of such children told a federal appeals court.
By following the Republican governor's statewide ban on mask mandates, the schools are violating the Americans With Disabilities Act, since Covid-19 poses a greater threat to the children than to those who aren't disabled, attorney Linda Coberly told a three-judge panel at a hearing Wednesday in New Orleans.
“Masks are the single most effective accommodation a school can provide,” Coberly told the court. The disabled children are “being forced out of in-person learning altogether” unless they choose to accept the greater risk, she argued.
Abbott's ban on mask mandates has become a flashpoint in the nationwide fight over face coverings at school, with rulings handed down across the country. The U.S. appeals court in St. Louis last week upheld a preliminary court order blocking Iowa's ban on such mandates, and a New York state appellate panel ruled this week that a statewide mandate could stay in effect while a legal challenge to it plays out.
Read More: Disabled Kids Sue Texas Over Ban on Universal School Masks
Abbott, who uses a wheelchair himself after being partly paralyzed in an accident decades ago, maintains parents should decide whether their children wear masks to school.
Earlier in the Texas case, another panel of New Orleans appellate judges agreed with Texas and let Abbott's order stand temporarily. That panel, which included two appointees of former president Donald Trump, said the disabled children were hurting themselves by choosing to avoid in-person instruction and weren't legally entitled to the accommodation of their choice, only a “reasonable” accommodation.
Texas' lawyer Eric Hamilton told the court on Wednesday that schools can use other protective measures, such as social distancing, plexiglass shields and vaccinations, to let disabled kids safely attend class.
“Adding a mask mandate on top of that makes no material difference in the positivity rate in the plaintiffs' schools,” Hamilton said, citing a study of Covid infection rates in two of the plaintiffs' seven local school districts. Under questioning by Senior Circuit Judge W. Eugene Davis, a Ronald Reagan appointee, Hamilton conceded that the study didn't address the heightened risk of infection and complications the coronavirus poses for disabled children in close contact with unmasked people.
All three judges were appointed by Republicans.
Read More: Texas Schools Can Require Masks Indoors, Federal Judge Says
Circuit Judge Don Willett, a Trump appointee, questioned an American Academy of Pediatrics claim that “it is beyond any doubt” that masks are in children's best interest. The pediatricians, who aren't a party to the dispute but are participating as “friends of the court” to try to persuade the judges, said most educators and U.S. public health authorities believe students benefit more from in-person instruction than from remote learning, even if it requires everyone to wear masks.
Willett asked a lawyer for the doctors about guidance from the World Health Organization and a European health authority that doesn't recommend masks because children generally don't develop severe Covid infections.
Jeff Justman, a lawyer for the pediatricians, said health officials' recommendations are updated monthly as conditions change. But with Texas childhood vaccination rates stalling and hundreds of kids fighting the disease in hospitals, “now is not the time to change the recommendation for universal masking,” he told the judges.
Between Dec. 23 and Jan. 6, more than 905,000 children in the U.S. were newly diagnosed with Covid-19, according to court records. As of Jan. 13, only 13% of Texas children 5 to 11 had been fully vaccinated, compared with 53% of Texans 12 to 17.
Read More: Texas School Mask-Mandate Ban Back On During Disability Appeal
Lawyers representing the Biden administration also participated in the hearing and stressed that the U.S. Centers for Disease Control and Prevention have consistently supported requiring masks at school.
The judges questioned whether accommodating disabled students with masks in schools would lead to requiring vaccine mandates as well, and asked whether disabled kids would require similar accommodations in other public facilities, like movie theaters and libraries.
Janea Lamar, a U.S. Justice Department lawyer, replied she doubted the mask mandates would lead to school requirements for Covid vaccination, saying “reasonable accommodations” under the ADA generally relate to options a school has previously implemented. She said Covid-related disability complaints concerning other public facilities would have to be assessed individually.
Coberly, the disabled students' lawyer, said equal access to public school is a legal requirement, while “there's no Texas right to go to a movie theater.”
The case is E.T. v. Paxton, 21-51083, Fifth U.S. Circuit Court of Appeals (New Orleans).
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