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Virginia judge declines to act immediately on school boards’ suit seeking to halt Youngkin’s mask-optional order

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)

An Arlington County Circuit Court judge is weighing how to act on a request from seven Virginia school boards to halt implementation of Gov. Glenn Youngkin’s order making masks optional in schools.

The judge, Louise M. DiMatteo, declined to immediately deny or grant the request at a hearing held Wednesday in the lawsuit the boards filed last month against Youngkin’s order, which seeks to leave masking decisions up to parents. It is unclear when DiMatteo will make a determination.

“I haven’t decided,” DiMatteo said, adding that she wants to read over the briefing again. “I don’t intend to take very long.”

Virginia parents and teachers: Tell us about masking policies in your school

The school boards — representing school districts in Fairfax County, Alexandria, Arlington, Hampton, Richmond, Prince William County and Falls Church — allege in their suit that Youngkin’s mask-optional order violates state law and the Virginia Constitution, which grants school boards the right to oversee school systems in their localities. On Wednesday, lawyer for the plaintiffs John Cafferky reiterated this point: “It’s the role of school boards,” he said of masking decisions.

The attorney for the governor, Steven Popps, told DiMatteo that granting an injunction would cause “irreparable harm … to parents who have opted not to mask their children.”

DiMatteo seemed unswayed by the school boards’ argument that state law compels them to mandate masks. Not all districts have a mask mandate and no district follows all of the Centers for Disease Control and Prevention’s recommendations, she noted. She also appeared to reject the idea that Youngkin’s order had no connection to public health, saying he obviously viewed his approach as “the best solution … weighing all of the health risks.”

But she reserved judgment on whether that solution was legally valid.

Youngkin issued his order making masks optional — which contravenes federal health guidance and the mask mandates that the vast majority of Virginia school districts have maintained throughout the pandemic — on his first day in office. It signaled a laser-sharp focus on education — and America’s ongoing education culture wars — and immediately divided school districts and parents throughout the state.

The order took effect Jan. 24. But as of a week and a half later, 70 school districts — of 131 in Virginia — were defying Youngkin’s order by continuing to require masks for all students and staff, according to a Washington Post tally. This conforms with guidelines from the CDC that say that everyone over age 2 should mask inside schools, regardless of their vaccination status.

More than half of Virginia school districts are defying Youngkin’s mask-optional order

The legal challenges have come quickly: Three days after Youngkin announced his mask-optional order, a group of Chesapeake parents filed suit in the Virginia Supreme Court. Six days after that, the seven school boards filed suit, too.

The suits make similar arguments: First, that Youngkin’s order is unconstitutional because it infringes on the right of school boards to oversee school systems. Second, that the order violates a state law passed in 2021, known as Senate Bill 1303, that requires school districts to comply with federal health guidelines — including on topics such as masking — to the “maximum extent practicable.”

Because the CDC recommends masking, the argument goes, school districts in Virginia are required to mask their students under SB1303, making their obedience to Youngkin’s mask-optional order impossible. Cafferky, speaking for the school boards, outlined this theory again Wednesday.

“There’s not a public health rationale” for Youngkin’s order, Cafferky said. Before it, “things were operating pretty effectively, the kids were complying” — but now there is “chaos.”

Popps, though, contended that SB1303 “doesn’t require rigid adherence to every recommendation from the CDC.” He added that “no school board is even remotely following all of the applicable guidance” and that, amid a fast-changing pandemic, it should be up to parents to make key safety and health decisions for their children.

The judge pushed back on Cafferky’s assertion that SB1303 directs school boards to mandate masks for all students.

“I don’t think it can be credibly argued that it’s an absolute mandate,” she said.

ACLU challenges Youngkin order mandating choice on school masks

As the Arlington judge mulls a decision in the school boards’ lawsuit and the Chesapeake parents await their suit’s day before the Virginia Supreme Court, the number of lawsuits around Youngkin’s mask-optional order is growing.

This week, a third lawsuit was filed, this one on behalf of parents of students with disabilities. They charge that the mask-optional order violates federal disability law by denying their vulnerable children the full, free public education to which the Americans With Disabilities Act entitles them. The suit was filed Tuesday in federal court in Charlottesville by the American Civil Liberties Union of Virginia.

The same day, a fourth suit was filed. A group of Loudoun County parents sued their county School Board for not recognizing Youngkin’s order. The suit, filed in Loudoun Circuit Court, says the school district is violating the law by requiring universal masking. Youngkin, Attorney General Jason S. Miyares and Jillian Balow, the state superintendent of public instruction, filed a motion Wednesday to join the Loudoun parents’ suit.

Also, Wednesday, the Loudoun school system — which enrolls roughly 82,000 students — suspended 29 students for refusing to wear masks.

Youngkin’s focus on education in his first weeks in office fulfills a campaign promise to grant parents greater control over what and how their children learn in the classroom. His executive order making masks optional was accompanied by a flurry of other orders dealing with education, including an order banning teachers from discussing “divisive concepts” related to race and sex, and an order that opened an investigation into Loudoun Public Schools, a troubled Northern Virginia district that has become the face of the nation’s culture wars.

Before the close of the hearing Wednesday, DiMatteo said that she knows there is a strong public desire for a speedy decision and that she will do her best to be swift.

But, she emphasized, she will not be issuing a decision on whether masking is a good or bad thing in schools.

“I’m not going to decide who’s right or wrong on masking,” DiMatteo said. “This is a question of who has authority to issue a good, bad or indifferent order.”