TEXAS — A lawsuit marking the first federal challenge to Texas Gov. Greg Abbott’s executive orders banning state entities from requiring facial masks claims that ban violates the Americans with Disabilities Act.

The lawsuit, filed Tuesday by Disability Rights Texas on behalf of 14 child plaintiffs against Gov. Abbott and Texas Education Agency Commissioner Mike Morath, claims the mask ban puts children with disabilities at risk, is discriminatory and violates ADA as well as Section 504 of the federal Rehabilitation Act.

“The COVID-19 pandemic has dramatically affected students with disabilities, beginning with the closure of the public school system in the spring of 2020. These students lost critical instruction and services, continuing into the 2020-21 school year. Now, the Delta variant and a surge in cases is threating this school year. Students with disabilities need in-person schooling more than other student groups, but they must be able to receive instruction and services safely. Many of these students have underlying health conditions and are at high risk for illness and even death due to COVID-19,” a news release announcing the lawsuit states.

Gov. Abbott, who has a disability himself and uses a wheelchair following an accident years ago, this week disclosed he has tested positive for COVID-19. He is fully vaccinated and is currently isolating in the Governor’s Mansion in Texas.

Still, the governor remains steadfast in his opposition to mask mandates, including those instituted by Texas school districts. He has repeatedly stated that mask usage and vaccination should be a matter of personal choice.

One family involved in the case says that the start of this school year has been especially stressful. 

“It’s been a big transition. I mean, we kept her home, right, for a year and a half," said Julia Longoria, a San Antonio parent of three. 

Her 8-year-old, Juliana Ramirez, just started third grade back on campus in San Antonio. Since March 2020, her family has been strict about isolating due to Juliana’s and her siblings’ severe asthma. 

“As a first time mom especially like seeing your child just struggle to breathe is really terrifying, and that feeling never goes away," said Longoria. 

Juliana also has ADHD, which made virtual learning more difficult.  It began to take a toll on her mental health. 

“She started to have panic attacks pretty regularly. And she told me that she could just couldn't do it anymore," said Longoria. 

They decided to send her back to in-person school this year, thinking the risk would be low. 

“We thought surely by the beginning of the school year, there would be masked mandates again. And then it became this political nightmare. And we didn't know what to do," said Longoria. 

“These kids, the parents are facing an impossible choice. Basically the governor's telling them, ‘Look, you either can choose to educate your child, or you can choose to save your child's life potentially," said Robert Winterode, education attorney with Disability Rights Texas. "If they do go to school, it could lead to life-threatening, life-altering consequences, and that's what this suit seeks to prevent. We do have certain parents who are not sending their kids to in-person instruction because of the danger to them. But what that looks like is, the state is also not providing funds to any of the school districts right now for virtual instruction, and so many don't have that option. So how are those parents supposed to educate their children?"

Juliana is one of 14 kids represented in the case. All have disabilities that put them at a greater risk of severe illness or death if they get COVID-19. They’re also all under 12 years old, and too young to get the vaccine. 

“I asked her, ‘Do you want to do this?’ And she says, ‘I do… because I’m not the only kid that this would hurt if we don’t have masks,’ and I said, ‘That’s right,'" said Longoria. "We’re in a really fortunate and privileged position to have a voice, and we have a responsibility to use it.” 

“The science is clear: kids need to be in the classroom, and that can happen safely with masks," Longoria continued. "Stop politicizing this issue. This is about the health of our children and their right to learn.”

The TEA said Thursday it will not be enforcing school districts’ violation of the governor’s ban on mask mandates until the litigation is resolved. 

A spokesperson for Abbott’s office replied to Capital Tonight's request for a statement on the case, saying, “Governor Abbott cares deeply about the health and safety of disabled students, as he does for all Texas students. Since his accident that left him paralyzed, the Governor has worked throughout his career to protect the rights of all those with disabilities in Texas.” 

The delta variant-fueled COVID-19 virus is running wild in the state. Over the past two days, the Texas Department of State Health Services has reported in excess of 20,000 new virus cases each day.

Numerous school districts are flouting Gov. Abbott’s orders and have put mask mandates in place. Some of those include Austin ISD, Houston ISD, Dallas ISD and Fort Worth ISD.

The lawsuit is seeking a restraining order that would permit school districts and public health authorities to require masks for students and staff members as deemed necessary.

To read the complaint in its entirety, click here.