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Va. parents file lawsuit, schools vow resistance against Youngkin’s order making masks optional

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A previous caption on the last photo misspelled the name of Sonia Zawadski. The article has been corrected.

One of Va. Gov. Glenn Youngkin's first acts was an executive order making masks optional in schools. Some parents worry what it could mean for their kids. (Video: Jorge Ribas/The Washington Post, Photo: Matt McClain/The Washington Post)

A major showdown over masking in Virginia schools — already involving at least one lawsuit — is brewing between newly minted Gov. Glenn Youngkin (R) and parents and superintendents across the state he was just elected to lead.

Youngkin, who took office Saturday, started his term as Virginia’s 74th governor with an executive order that declares masking optional in school systems statewide, subject to the preference of parents. Although some school districts complied almost immediately, other superintendents promised defiance — including the superintendent in Youngkin’s new home, Richmond. Jason Kamras, the head of Richmond Public Schools, vowed in a tweet over the weekend to keep his district’s mask mandate and told The Washington Post, “We will fight it to the end.”

While Youngkin has promised strong action to enforce the order, questions are swirling about the legality of the rule and what ramifications defiant districts could face.

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The first legal challenge came Tuesday, when a group of parents in Chesapeake sued Youngkin, some of his top officials and the school board and superintendent of Chesapeake City Public Schools, alleging the masking order violates a Virginia law passed over the summer that requires schools to follow federal health guidelines “to the maximum extent practicable.” The Centers for Disease Control and Prevention currently recommends masking for everyone inside K-12 schools, regardless of vaccination status.

Meanwhile, the battle quickly became political, with leaders on the left urging school districts to disobey Youngkin’s masking rule while politicians on the right advised swift compliance. In Loudoun County, where school officials are weighing how to respond to Youngkin’s order, some parents held a rally Tuesday calling for maintaining masking in schools. The furor reached the White House when press secretary Jen Psaki, who said she is a parent in Arlington Public Schools — one of the districts that has vowed to keep its mask mandate — posted a tweet in support of the school system. The Biden administration has already waded into conflicts with Republican governors nationwide over school mask mandates, for example opening a civil rights investigation into Gov. Greg Abbott’s (R) ban on school masking in Texas.

Shortly after he announced his mask rule, Youngkin said his administration would “use every resource within the governor’s authority to explore what we can do and will do in order to make sure parents’ rights are protected.” And in a Fox News appearance Monday, Lt. Gov. Winsome E. Sears (R) was more specific, saying the administration could withhold some state funding if school districts refuse to comply.

“There’s certain combinations of money that we send to the local schools and he could withhold some of that,” Sears said, spurring outrage from Democratic leaders including state Sen. Jennifer L. McClellan (D-Richmond), who on Tuesday promised a lawsuit if the governor goes through with Sears’s threat.

Youngkin spokeswoman Macaulay Porter said Tuesday that “Democrats willfully mischaracterized the lieutenant governor’s comments” but did not rule out withholding funding from defiant districts.

The governor “will consider the tools available to make sure that parents’ rights are protected,” Porter said without elaborating.

Experts were divided on the legal viability of Youngkin’s actions so far and on what actions he can take as governor to enforce his masking rule. Carl Tobias, a law professor at the University of Richmond, said all of this is destined for the courts. “I think there are going to be a lot of suits,” he said.

The most common argument being advanced against Youngkin’s masking rule is that it contradicts the 2021 state law that says schools have to comply to the highest level possible with CDC guidance. That law is in effect until Aug. 1.

Because the CDC recommends masks in schools, the argument goes, school districts across Virginia are required by law to mandate masking in their buildings and cannot allow parents the right to choose.

The masking order “purports to sweep aside masking mandates and other protections with little or no consideration of or respect for CDC guidance, actions taken by the Virginia General Assembly, or the powers vested in school boards,” reads the 46-page Chesapeake parents’ lawsuit, filed Tuesday in the Supreme Court of Virginia.

Democratic lawmakers chimed in as well: “Gov. Youngkin is on shaky ground at best, telling the local school board what they can and can’t do,” Del. Jeffrey M. Bourne (D-Richmond) said Tuesday. “Their powers and responsibilities are enshrined in our laws and our state constitution.”

One of the co-sponsors of the 2021 state law, Sen. Siobhan S. Dunnavant (R-Henrico), released a statement Monday urging people to stop referencing her law, known as S.B. 1303, in seeking to invalidate Youngkin’s masking order.

“SB1303 has been used against our children and against its intent this school year to advance an agenda," Dunnavant said in the statement. "SB1303 does not mandate the use of masks in schools because the CDC does not mandate masks.”

Glenn Youngkin, first Republican to win statewide in Virginia since 2009, takes office

The Fairfax County GOP also put out a statement in support of Youngkin on Tuesday, with Chairman Steve Knotts urging the county school board to follow the order. Fairfax County Public Schools is one of a handful of mostly Northern Virginia districts that declared over the weekend that masking will continue inside schools, although Fairfax schools spokeswoman Helen Lloyd said Tuesday that “we are expecting an update before the end of the week” on the school system’s masking policy.

Former Virginia attorney general Jerry Kilgore, a Republican who served in that post from 2002 to 2005, said he thinks Youngkin is on strong ground legally with his masking order because the CDC is only recommending masks in schools now, not requiring them. That leaves the argument that Youngkin’s order contradicts state law “in a limbo stage,” he said.

Kilgore added that Youngkin is supported by a section of Virginia law that asserts “a parent has a fundamental right to make decisions concerning the upbringing, education and care of the parent’s child.”

“I think the word ‘care’ in there is important,” Kilgore said.

Loudoun County schools will weigh in on school mask requirement this week, superintendent says

Bob McDonnell, a Republican who was Virginia governor from 2010 to 2014 — and was state attorney general before that — also pointed to the statute, which was passed during his time as governor. Although the final decision probably will come from the courts, McDonnell said, Youngkin seems to be “on pretty good footing” because of that statute.

He added that Youngkin would be within his rights to yank funding from noncompliant districts, because the Virginia legislature has long used budgetary “carrots and sticks" to drive change. However, McDonnell noted, Youngkin will have to win the support of a Democratic-controlled Senate to pull that off.

As the legal, political and cultural battles raged over the mask order, newly appointed Youngkin officials set to work enforcing it. Acting state health commissioner Colin Greene wrote in an email to regional health directors Tuesday that they should interpret Youngkin’s order as nullifying all school-based mask mandates.

“I suspect there are those who find this rule hard to hear,” Greene wrote in the email, obtained by The Washington Post. But “compliance with the word and intent of this Executive Order on the part of any VDH employee is not optional."

Antonio Olivo, Fenit Nirappil, Gregory S. Schneider and Laura Vozzella contributed to this report.

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