But Moon refrained from challenging a recent state law and a similar executive order from Gov. Glenn Youngkin (R), both of which made masking optional in Virginia public schools. Those “remain in force,” Moon wrote in his ruling, “affording parents the choice whether their children should wear masks to school, notwithstanding any school rule that would require students to wear masks.”
He added that, although he is granting the school systems attended by the 12 students the right to flout the mask-optional law, school officials are not required to do so. He wrote, “The Court enjoins Defendants” — meaning the 10 school districts — “from enforcing [the mask-optional executive order and law] only as against these Plaintiffs in their ability to ask for (not definitely to receive) from their schools some amount of masking as a reasonable modification.”
Both sides claimed victory after the ruling, a preliminary injunction that comes before extensive litigation.
Virginia Attorney General Jason Miyares said in a statement that the ruling “affirms that … parents have the right to make choices for their children.”
The American Civil Liberties Union of Virginia, which filed the lawsuit on behalf of the 12 families, tweeted, “We are glad the court agreed: No student should have to risk their lives to go to school.”
The Virginia ACLU had argued in its suit that making masks optional in public K-12 schools violates federal disability law because it puts vulnerable children at risk, denying them their right to a free, appropriate public education. It was filed in federal court in Charlottesville, and the plaintiffs are parents of 12 students with conditions including asthma, Down syndrome, cystic fibrosis, cancer and diabetes — all of which put the children at higher risk for coronavirus infection.
The suit targets a law passed by the General Assembly early this year that makes masks optional in public schools throughout the state.
The law leaves “parents of many Virginia children with disabilities with an unconscionable choice: to choose between putting them at risk of severe illness … and keeping them home with little or no education,” the lawsuit states. “For many of these children, the Commonwealth has effectively barred the schoolhouse door.”
Moon wrote: “This is not a class action, and the twelve plaintiffs in this case have no legal right to ask the Court to deviate from that state law in any schools in Virginia (much less school districts) their children do not attend, or indeed even those areas of their schools in which Plaintiffs’ children do not frequent.”
But, he said, the state law “cannot preclude Plaintiffs from asking for some required masking as a reasonable modification, nor bar their schools from implementing some required masking, if doing so would, in fact, be a reasonable modification.”
The Virginia ACLU first filed a lawsuit challenging mask optionality in schools in early February. At that time, the lawsuit targeted an executive order, issued by Youngkin on his first day in office, which allowed parents in school districts statewide to opt their children out of masking requirements.
More than half of Virginia’s 133 school districts disobeyed the order, which generated a flurry of lawsuits, including the ACLU’s. But the order became moot in mid-February, when the Virginia General Assembly passed legislation requiring school districts in the state to go mask-optional.
In response, the Virginia ACLU on Feb. 18 amended its lawsuit so it targets the legislation, which was quickly signed into law by Youngkin, as well as the governor’s mask-optional executive order.
The amended suit says that both the law and the mask-optional order “increase the exclusion and segregation of students with disabilities, deny them equal access to public school, interfere with schools’ ability to comply with their obligations under federal law … and illegally force parents of students with disabilities to choose between their children’s education and their health and safety,” in violation of the Americans With Disabilities Act.
The 10 school districts affected by the judge’s ruling are Albemarle County Public Schools, Manassas City Public Schools, Henrico County Public Schools, Chesterfield County Public Schools, Cumberland County Public Schools, York County School Division, Bedford County Public Schools, Chesapeake City Public Schools, Loudoun County Public Schools and Fairfax County Public Schools. The latter two are among the state’s largest districts, with about 81,000 and 180,000 students, respectively.