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Judge temporarily halts Youngkin order making masks optional in Va. schools after lawsuit from school boards

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)
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An Arlington judge on Friday barred enforcement of Gov. Glenn Youngkin’s mask-optional order for schools — a major victory for the seven school boards that sued to stop it, and a sharp rebuke for the new governor.

In her 10-page order, Arlington Circuit Court Judge Louise DiMatteo offered a check to Youngkin’s assertion of gubernatorial authority, writing that the Virginia Constitution gives authority to local school boards to make safety and health decisions — including masking — for their students. She also wrote that a state law passed over the summer requiring school districts to comply with federal health guidance makes Youngkin’s mask-optional order impossible to carry out, because it, too, delegates authority over decisions such as masking to local school boards.

“The single issue before the Court is whether the Governor, via his emergency powers, can override the decision of local school boards delegated to them,” DiMatteo wrote in the ruling granting a temporary restraining order. “On this pivotal point, the Court concludes that the Governor cannot.”

Youngkin (R), in a statement issued by spokeswoman Macaulay Porter on Friday, vowed to appeal. Porter called the Arlington judge’s ruling “just the first step in the judicial process.”

“The governor will never stop fighting for parents’ ability to choose what is best for their children,” Porter said in the statement.

Experts, though, predicted that DiMatteo’s ruling suggests she will ultimately find in favor of the plaintiffs, determining that the governor does not have the authority to tell school boards whether the children they enroll should remain masked or not. Several called the judge’s line of thinking obvious, built around a largely unavoidable interpretation of the state constitution and the state law passed last year, known as SB1303.

“The governor fought the law and the law won, at least for now,” said Stephen Farnsworth, a political scientist at the University of Mary Washington.

It is unclear what impact the restraining order will have beyond allowing the seven districts that sued to mandate masking. A spokeswoman for Attorney General Jason Miyares said his office interprets the order to apply only to the seven districts, although a statement from the seven school boards suggested they are interpreting the order as applicable to all Virginia districts.

https://www.washingtonpost.com/education/2022/01/26/virginia-schools-masking-rules/

The restraining order will be in force until the seven school boards’ lawsuit concludes, after the judge issues a final ruling. The boards that are suing include those for Fairfax County — whose 180,000 students make it the largest in the state — Arlington, Alexandria City, Hampton City, Richmond City, Prince William County and Falls Church City.

In an interview Friday, Fairfax County School Board Chair Stella Pekarsky (Sully) said she is pleased but unsurprised by the judge’s temporary reversal of Youngkin’s order, which Pekarsky said she is “optimistic” will ultimately become permanent.

“We felt very strongly when we filed this that we had a good case, and the authority to continue with what we were doing,” she said.

Youngkin issued his executive order making masks optional for students in schools, subject to the choices of parents, on his first day in office. It took effect Jan. 24, but the majority of Virginia school districts — at least 70 out of 131 total — are defying the order by continuing to require masks for all children, according to a Washington Post analysis.

The order has additionally earned multiple legal challenges. A group of parents in Chesapeake sued three days after Youngkin announced the mask-optional order, and the seven school boards sued over the order two days after that.

The American Civil Liberties Union of Virginia also has sued Youngkin over the mask-optional order, arguing that it denies students with disabilities their federally mandated access to a free, fair and appropriate public education. And a group of parents in Loudoun County — a wealthy, politically diverse district that has seen significant controversy over education in the past two years — filed suit against its school board for not complying with Youngkin’s mask-optional order. Youngkin, the state attorney general and state schools superintendent have joined that case. A hearing is scheduled for Monday, Miyares’s spokeswoman said.

Loudoun County Public Schools, which enrolls about 82,000 students, is still requiring masks. The district recently suspended 29 students for failing to don them.

The suit from the seven school boards and the suit from the Chesapeake parents make the same two-pronged argument: that Youngkin’s order violates the Virginia Constitution as well as state law.

The first part of the argument hinges on the fact that the Virginia Constitution specifies that school boards have the power to oversee the school systems in their localities. By declaring masks optional in school districts statewide, Youngkin is intruding on school boards’ constitutionally granted authority, the plaintiffs in both suits argue.

‘So broken down’: Teachers, students and families caught in the middle of Youngkin’s mask order

The second part centers on a piece of legislation passed last year that requires all school districts in Virginia to comply with federal health guidance to the “maximum extent practicable.” The Centers for Disease Control and Prevention currently recommends masking inside schools for all individuals over the age of 2, regardless of vaccination status. Because of those CDC guidelines, the plaintiffs argue, Youngkin’s order making masks optional is forcing school districts to break the law.

In her opinion Friday, DiMatteo seemed to endorse this argument.

She wrote that the Virginia governor’s emergency powers, although “significant and sweeping,” do not mean that Youngkin “can direct the School Boards to ignore the General Assembly’s deference to CDC guidance and to abandon their considered determination about what is practicable regarding those mitigation strategies.”

Youngkin and his top officials, though, have argued that the governor is doing no more than his predecessor, Ralph Northam (D), who used his emergency gubernatorial powers during the pandemic to shutter businesses and schools. Northam also issued a mask mandate for schools.

A spokeswoman for Miyares reiterated this point in a statement Friday responding to the judge’s ruling.

“By empowering parents with an opt-out option for face masks, Gov. Youngkin is simply using the same executive powers used by Gov. Northam to alter our response to the same pandemic,” Miyares spokeswoman Victoria LaCivita said. “We are disappointed that the trial court did not fully agree with our interpretation of the law.”

Carl Tobias, a law professor at the University of Richmond, said the restraining order will remain in effect until DiMatteo issues another ruling. The case will now play out in her court.

Tobias said he expects that DiMatteo will want to rule quickly — adding that her decision on the restraining order indicates she will ultimately side with the plaintiffs.

“My sense is that she would rule similarly [in the end]," Tobias said. “My sense also is that the [governor] will appeal to protect his executive power and to prevail on the masking policy that he wants.”

Appeals would send the suit before the Virginia Court of Appeals first, and ultimately the Virginia Supreme Court.

The debate over masking has roiled households throughout Virginia over the past two weeks, sending some into a panic, while thrilling others. It also wrought chaos in many school districts, as officials scrambled to develop new masking policies and — in places where school districts decided to keep masking students — to handle children who showed up maskless, sometimes accompanied by equally maskless, unhappy parents.

DiMatteo appeared to reference some of this turmoil in her order. She wrote that, while the case is pending, “there appears to be a benefit to keeping the current policies in place” — a reference to mask mandates, which the vast majority of Virginia school districts had maintained before Youngkin’s order.

“The Court concludes that upending a policy that has been in place since the beginning of the school year and understanding that reliance on a universal mask policy would be undone by a rule allowing parents to choose whether to mask their children, would create irreparable harm in these school communities,” DiMatteo wrote.

As has been the case throughout the pandemic, Virginians were divided in their response to news of DiMatteo’s ruling Friday.

Elicia Brand, a Loudoun County mother and founder of the advocacy group Army of Parents, said she hopes and believes the restraining order will last only for the very “short term.”

She advised other parents who support mask-optionality, as she does, to have patience.

“Our governor and our attorney general are working on our behalf,” she said. “Nothing comes easy.”

But others elsewhere in the state were celebrating.

Amanda Lambert, a teacher in Chesapeake whose blood-clotting disorder makes her high risk for the coronavirus, said she feels comforted by the decision.

“My group chat is lighting up with happy parents and teachers,” she wrote in a text, adding a smiley face emoji adorned with hearts.

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