By: Melissa Kouri
New Virginia Governor Glenn Youngkin officially took office on January 15, 2022, and issued eleven executive orders later that same day.[1] The second of which effectively ended the existing Covid-19 mask mandate for students in Virginia public schools.[2] The order states that it was issued in the interest of “reaffirming the rights of parents in the upbringing, education, and care of their children,” but its issuance has elicited impassioned consequences across the commonwealth.[3] After the order took effect on January 24, at least 70 out of 131 total school districts in Virginia defied the order by continuing to require masks for all children in school.[4] While many parents are happy to be able to make the personal choice about whether to send their children to school with or without a mask on, others justifiably feel that the order is a detriment to public health and the safety of their children.
Aside from parental opinions, reasonable concerns about the legal implications of removing the mask mandate have begun to mount and bolster opposition to the order. Last year, the Virginia General Assembly passed a new law instructing local school boards to implement Covid-19 mitigation strategies in public schools that adhere to CDC guidelines “to the maximum extent practicable.”[5] Because CDC guidelines still recommend “universal indoor masking by all students, staff, teachers, and visitors to K-12 schools, regardless of vaccination status,” an order leaving the choice to individual parents directly conflicts with CDC guidelines, and accordingly with Virginia law.[6] If such a conflict does exist, a separation of powers issue follows on its heels. Virginia’s Constitution grants school boards, not the Governor, the power to oversee local school systems.[7] An executive order depriving local school boards of the ability to do so may thus run afoul of the state constitution’s stance on executive overreach.[8]
In response to public opinion and these potential legal conflicts, several challenges have been raised and lawsuits filed against Youngkin in hopes of blocking the order and keeping the mask mandate intact. On January 18, a group of parents of public-school students in Chesapeake, Virginia filed suit asking the Virginia Supreme Court to prevent the order from taking effect.[9] Additionally, seven school boards – Fairfax County, Prince William County, Alexandria, Arlington, Richmond, Falls Church and Hampton – filed suit in Arlington County Circuit Court on similar grounds.[10] Fairfax County Public Schools issued a statement arguing that, if they are forced to comply with the order, “school boards are placed in a legally untenable position — faced with an executive order that is in conflict with the constitution and state law.”[11] Another suit filed by the ACLU challenges the order on federal grounds, alleging violation of antidiscrimination laws.[12]
While the Chesapeake suit was dismissed by the Virginia Supreme Court, the legality of Younkin’s executive order remains unresolved.[13] In dismissing the case, the Court declined to rule on the legality of the executive order and instead dismissed it based on a technicality that “the relief requested does not lie against any of the respondents.”[14]
Although Youngkin and Virginia Attorney General Jason Miyares have applauded the decision as a win for the rights of parents and the order generally, the narrow dismissal has no bearing on the other challenges to its legality.[15]
In fact, two days before the dismissal, a judge in Arlington County granted a temporary restraining order in favor of the seven school boards who filed in Arlington County Circuit Court.[16] The order is not impacted by the Virginia Supreme Court’s ruling and will remain in effect until the lawsuit concludes.[17] Further up the chain, the federal lawsuit will proceed despite the dismissal as well.[18]
Though the issue of Youngkin’s EO-2 remains unsettled for now, these suits provide important examples of public sentiment affecting change through the court system. Whatever the outcome, the continued path of these challenges through the judiciary will inevitably have a significant impact on the commonwealth at large. Whether individuals are directly or indirectly involved in the public-school systems, a ruling in either direction could serve as a significant stance on the limits of gubernatorial power over school boards.
[1] Gov. Youngkin Issues Executive Orders to End School Mask Mandate; Investigate ‘Wrongdoing’ in Loudoun, InsideNova, (Jan. 15, 2022), https://www.insidenova.com/headlines/gov-youngkin-issues-executive-orders-to-end-school-mask-mandate-investigate-wrongdoing-in-loudoun/article_75e5e9dc-762e-11ec-9a41-f7b14b28d5e2.html.
[2] Id.
[3] Va. Exec. Order No. 2 (Jan. 15, 2022).
[4] Hannah Natanson and Rachel Weiner, Judge Temporarily Halts Youngkin Order Oaking Masks Optional in Va. Schools After Lawsuit From School Boards, Wash. Post. (Feb. 4, 2022), https://www.washingtonpost.com/education/2022/02/04/arlington-judge-issues-temporary-restraining-order-barring-enforcement-youngkins-mask-optional-policy/.
[5] H.D. 1303, 2021 Spec. Sess. (Va. 2021): See also Tierney Sneed, Virginia Parents File Lawsuit Against Gov. Youngkin Over Executive Order Ending Mask Mandates in Public Schools, CNN, (Jan. 19, 2022), https://www.cnn.com/2022/01/19/politics/virginia-parents-youngkin-masks-lawsuit/index.html.
[6] Guidance for COVID-19 Prevention in K-12 Schools, CDC, (Updated Jan. 13, 2022), https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html.
[7] Tierney Sneed, Virginia Parents File Lawsuit Against Gov. Youngkin Over Executive Order Ending Mask Mandates in Public Schools, CNN, (Jan. 19, 2022), https://www.cnn.com/2022/01/19/politics/virginia-parents-youngkin-masks-lawsuit/index.html
[8] Id.
[9] Id.
[10] Kathryn Watson, Virginia School Districts Sue Over Youngkin Order Making Masks Optional, CBS, (Jan. 24, 2022), https://www.cbsnews.com/news/face-masks-virginia-schools-lawsuit-youngkin/.
[11] Anna Bryson, Va. Supreme Court Dismisses School Masking Lawsuit Against Youngkin, Henrico Citizen, (Feb. 7, 2022), https://www.henricocitizen.com/articles/va-supreme-court-dismisses-school-masking-lawsuit-against-youngkin/.
[12] Id.
[13] Id.
[14] Natalie Musumeci, Virginia Supreme Court Dismisses Parents’ Lawsuit Challenging Gov. Youngkin’s Order That Ended School Mask Mandates, Insider, (Feb. 7, 2022), https://www.businessinsider.com/virginia-supreme-court-tosses-lawsuit-parents-challenging-youngkin-mask-order-2022-2.
[15] Anna Bryson, Va. Supreme Court Dismisses School Masking Lawsuit Against Youngkin, Henrico Citizen, (Feb. 7, 2022), https://www.henricocitizen.com/articles/va-supreme-court-dismisses-school-masking-lawsuit-against-youngkin/.
[16] Hannah Natanson and Rachel Weiner, Judge Temporarily Halts Youngkin Order Oaking Masks Optional in Va. Schools After Lawsuit From School Boards, Wash. Post. (Feb. 4, 2022), https://www.washingtonpost.com/education/2022/02/04/arlington-judge-issues-temporary-restraining-order-barring-enforcement-youngkins-mask-optional-policy/.
[17] Anna Bryson, Va. Supreme Court Dismisses School Masking Lawsuit Against Youngkin, Henrico Citizen, (Feb. 7, 2022), https://www.henricocitizen.com/articles/va-supreme-court-dismisses-school-masking-lawsuit-against-youngkin/.
[18] Id.