Virginia School Districts File Lawsuit After Governor’s Order

February 3, 2022

On Jan. 15, 2022, newly inaugurated Virginia Governor, Glenn Youngkin, signed Executive Order Number Two and, in doing so, removed school mask mandates across the state allowing parents to determine whether their child would wear a mask to school. The order drew upon several sections of Virginia law, most notably § 1-240.1 of The Code of Virginia. This law states that: “a parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.” The order also drew upon § 44-146.17 of The Code of Virginia which gives the governor the power to issue executive orders with “the force and effect of law,” when there is a declared state of emergency. The order also mandated that the Virginia Department of Health guidance for K-12 schools be modified and that schools ensure that indoor air quality is maximized.

In response to the order, some school districts rescinded mask mandates, but others, including FCPS, vowed legal action. On Jan. 24, FCPS, along with six other school districts, filed suit, alleging in a press release that the order was in violation of the Virginia Constitution, while also arguing that the order was in direct contravention of Senate Bill 1303. Article VIII, Section Seven of the Virginia Constitution, vests the power of school district supervision under school boards, a power they argue cannot be interfered with by any other governing authority without a constitutional amendment. Meanwhile Senate Bill 1303, which expires in August, states that school districts must “provide such in-person instruction in a manner in which it adheres, to the maximum extent practicable, to any currently applicable mitigation strategies … that have been provided by the Federal Centers for Disease Control and Prevention.” Under the school board’s interpretation, this bill means that the school system must mandate masks, according to CDC guidance. The school system stated that they are “faced with an executive order that is in conflict with the constitution and state law.”

Both the governor and the school system also make arguments about the effectiveness of mask mandates in schools, citing various studies to argue for and against the relative benefits of masking. One study, referenced by the governor’s order, found no statistically significant difference between schools with mask mandates and those without, though the study did suggest that there was probably some difference, and thus, universal masking was worthwhile. The governor’s order also notes that masks are less effective when worn for longer periods, and that children frequently wear masks incorrectly, rendering them ineffective. Additionally, it notes that masks can generate negative effects such as “[impediment to] the growth of emotional and social skills.” Studies cited by FCPS include a study suggesting that average pediatric case rates were lower in schools with mask mandates in the first two weeks, than those without. Another study cited by FCPS from Arizona found a significant increase in outbreaks in schools without mask mandates. Both studies have faced harsh criticism because they did not account for vaccination rates, with the latter study also criticized for its methodology.

Following the filing of the lawsuit, both Youngkin and Scott Brabrand, FCPS superintendent, have stated that they will abide by the decision made by the courts. The initial hearing for the case occurred on Feb. 2, at the Arlington Circuit court, and a decision is expected soon. Until then, FCPS will continue to mandate masks, with a one day out-of-school suspension levied against violators of the mask policy.

AUTHORS NOTE: The legal arguments that the executive order violates the VA Constitution and Senate Bill 1303 are inherently contradictory. One case argues that the state government cannot force School Boards to implement policy, the other argues that they must implement state policy, lest they violate state law. It is in this contradiction, along with the fact that the school system did not sue after Northam’s executive order mandating masks, that causes me to believe that FCPS was lying when it said that its lawsuit is not politically motivated.

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