Gov. Greg Abbott.
Gov. Greg Abbott has issued multiple executive orders related to the pandemic, including banning local governments and school districts from mandating masks or vaccines. Credit: Bonnie Arbittier / San Antonio Report

Mark Twain said, “History doesn’t repeat itself but it often rhymes.” Or perhaps he didn’t, says the New York Times. Either way, in San Antonio, one of the oldest cities in Texas, sometimes history can be said to echo.

Nearly a hundred years ago the U.S. Supreme Court, in a three-paragraph order by legal giant Justice Louis Brandeis, upheld the City of San Antonio’s authority to require smallpox vaccinations in both public and private schools. 

Brandeis wrote that an earlier case, Jacobson v. Massachusetts, “had settled that it is within the police power of a State to provide for compulsory vaccination,” he wrote. “That case and others had also settled that a State may, consistently with the Federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.”

Texas Attorney General Ken Paxton is now suing the San Antonio Independent School District, arguing that the state also has the power to take away that authorization.

This is a matter of great urgency because the hypercommunicable delta variant of COVID-19 is ravaging communities while state authorities in at least three states — Texas, Florida, and Arizona — specifically prohibit mask and vaccination mandates in schools.

“Paxton Successfully Sues Vaccine-Mandating School District,” Paxton’s office boasted in a press release last week. The release bragged that the day after the lawsuit was filed, SAISD Superintendent Pedro Martinez “issued a district-wide ‘clarification’, saying that he ‘will not compel any staff members to be vaccinated until the vaccines are fully approved by the FDA.’”

Paxton’s boasting was unrestrained: ‘“State law could not be clearer: ‘No governmental entity can compel any individual to receive a COVID-19 vaccine administered under an emergency use authorization.’ But San Antonio ISD tried to play by its own set of rules. Thankfully, we stopped them,” the press release stated.

But that very day the U.S. Food and Drug Administration, as Martinez clearly anticipated from public reports, gave full approval to the Pfizer vaccination, removing it from “emergency authorization,” enabling the district to go ahead with his vaccination mandate. 

This apparently outraged Texas Gov. Greg Abbott. He promptly issued an executive order saying even fully approved vaccines could not be mandated, and added that he would ask the Legislature to fix the embarrassing provision of the current state law that permits mandates for fully approved vaccines. 

Abbott has also barred school districts from requiring masks for children, even though children under 12 cannot yet be vaccinated. The day he issued his new vaccination mandate ban, Bexar County counted 30 deaths from COVID-19, the most in more than a year. The next day Mayor Ron Nirenberg tweeted: “In the last 48 hours, we’ve confirmed 45 recent deaths in our region. None of the lives lost were vaccinated. Zero.”

On Wednesday, the day Abbott issued his latest order, 13,932 Texans were hospitalized with COVID-19, an increase of 1,227 from a week before. The next day 236 new deaths were reported, up by 50 from the seven day average a week before.

In the run-up to Abbott’s order, 3,425 teachers and other school staffers tested positive. Medina ISD in neighboring Bandera County is the latest of several Texas school districts to announce it was closing for a week because campus teachers, administrators, nurses and other staffers were in quarantine. There is a high likelihood that a vaccination mandate would have substantially reduced those numbers.

So taking away the power of state authorities to prevent local governments from fighting a raging lethal disease is vitally important. Can it be done? Once again San Antonio, the oldest city in Texas, is serenaded by an echo from history.

Back in 1971, the U.S. Supreme Court, by a thin 5-4 margin, turned down a lawsuit by Edgewood ISD on the city’s impoverished West Side. Lawyers for the district argued that state’s funding system that relied heavily on local property taxes violated the “equal protection” clause of the 14th Amendment. This was despite the fact that evidence showed that Edgewood would need a tax rate of $5.76 per $100 valuation to raise the amount of per-student revenue that, a few miles away, the affluent Alamo Heights ISD could raise with a tax rate of $0.68. 

It would take two decades, but Edgewood was able to win a 9-0 decision in the Texas Supreme Court that had been denied them by the U.S. Supremes. Interestingly, the decision was not based on fairness. Instead, it was based on a single word in the first sentence of the state constitution’s Article 7:

“A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”

The key word was “efficient,” and the ruling was that the Texas finance system wasn’t. That raises an issue for today’s times. How can it be efficient to allow the governor to ban requirements of health measures such as masking and vaccinations that have been shown to be very effective in lowering the number of infections of COVID-19 and, in the case of vaccinations, to drastically reduce the number of hospitalizations and deaths?

The school year has barely started and already we have proof of the governor’s assault on efficiency.

Thousands of students and thousands of staff have been barred from campus either for illness or for quarantines to prevent spreading the disease to other students and staff.  

In addition to Medina and several other small, rural school districts, a so-far uncounted number of schools and individual classrooms have been shut down.

All the students testing positive, plus many of their classmates and siblings presumably, must be quarantined because of their exposure. And many of their parents miss work either to take care of them or because of their own exposure.

School closures. Missing faculty, staff, and children. Stresses on families. Under these conditions, how can our schools provide an efficient education needed to preserve the liberties and rights of the people?

Even with all the mayhem, our all-Republican state Supreme Court may have a hard time overruling the governor and the Legislature. Unfortunately, the issues of masking and vaccinations have become heavily politicized.

The justices have to run in the Republican primary, and U.S. Sen. Ted Cruz was recently booed at a Republican gathering by supporters of primary opponents to Abbott who accuse him of being too aggressive in fighting COVID-19. 

But if schools keep closing as students, teachers, and staff keep getting sick, some of them seriously, it is possible that some members of the state Supreme Court will rule on reason and on conscience. And perhaps the possibility of political ads by Democrats in November’s election featuring videos of children on ventilators — or other nightmare scenarios — will concentrate the minds of even the most politically sensitive jurists. 

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Rick Casey

Rick Casey's career spans four decades of award-winning reporting on San Antonio. He previously worked as a metro columnist for the former San Antonio Light and, later, the San Antonio Express-News.