RICHMOND, Va. — A judge is siding with seven Virginia school boards after they filed a lawsuit on whether schools or Virginia Gov. Glenn Youngkin (R) have the final say on if students should wear face masks in school to protect themselves against COVID-19.
The school boards of Alexandria City, Arlington County, City of Richmond, Fairfax County, Falls Church City, Hampton City and Prince William County all joined forces to challenge Youngkin's executive order to make masks optional in schools in the Commonwealth. The school boards argued the aim of the lawsuit was to "defend the right of school boards to enact policy at the local level, including policies that protect the health and wellbeing of all students and staff," according to a press release.
In a memorandum opinion issued Friday, Judge Louise DiMatteo granted the school boards' request for a temporary restraining order to halt Youngkin's policy to make masks optional in schools.
The seven school boards challenged the question of whether an executive order can supersede a decision the school board makes for their school community. The boards noted that the action represents over 350,000 students across the state.
The boards also wanted to raise the issue that Youngkin overstepped a lawfully adopted statute with his recent executive order to make masks optional in schools. The 2021 law says each Virginia school board is required to offer in-person instruction that adheres “to the maximum extent practicable” to COVID-19 mitigation guidelines from the federal Centers for Disease Control and Prevention. The CDC currently recommends universal masking by anyone 2 and older, regardless of vaccination status.
This back and forth had left many schools and parents with uncertainty on whether to send their kids to school with masks.
DiMatteo wrote in her opinion is that the case comes down to whether the Commonwealth's governor "can override the decision of local school boards...[o]n this pivotal point, the Court concludes that the Governor cannot."
The opinion by DiMatteo notes the unprecedented situation of the pandemic and acknowledged Youngkin has been granted "significant and sweeping general powers to address an emergency" by the General Assembly.
Dimatteo wrote, "when confronted with a specific statute addressing the manner in which in-person learning can resume and directs local school boards to follow the guidance of the CDC, 'to the maximum extent practicable', it does not follow that the Governor, even in an emergency, 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."
The judge writes that if a restraining order was not granted, school staff and children would "have to reassess certain health conditions they believe are impacted by a mask policy" so there is a public interest benefit in maintaining the school board orders.
Macaulay Porter, a spokesperson for the governor, wrote in a statement that Youngkin will continue "fighting for parents' ability to choose what is best for their children."
Porter wrote that the governor does not view this as a pro or anti-mask debate, but rather a way to acknowledge parents know what's in the best interest of their children's health.
His statement claims "voices, including from the scientific and medical community, call into question the efficacy behind a universal mask mandate for children."
It is unclear what scientific and medical voices Porter is referring to. The CDC currently recommends mask-wearing in schools as an effective mitigation strategy.
"This is about what’s best for their kid’s health and who can best make that decision," Porter wrote. "We are going to appeal, this is just the first step in the judicial process."
In a joint statement from the seven school boards to file the lawsuit, they write that they are pleased to receive a temporary injunction granting them a restraining order to follow the governor's order.
The statement says, "While the legal process on this matter continues, today’s ruling preserves the existing policies and practices in Virginia school divisions, which includes masking requirements"
School officials felt like they were in a "legally untenable position -- faced with an executive order in conflict with the state constitution and state law," the school boards wrote, adding they felt like they had a choice between following the governor's order or public health guidance.
"We are confident that the court will soon come to the right decision to resolve this pressing matter," the statement says.
The school boards wrote that they hope one day schools will not have to mandate masks as a mitigation strategy, "but that day is not yet here."
"We would like to thank our community for their diligence and patience as we navigate these challenging times, keeping the safety and best interests of our students and staff at the forefront in our communities," the school boards wrote.
Virginia House of Delegates Minority Leader Eileen Filler-Cord (D-District 41) issued a statement calling the opinion a victory for children and criticized Youngkin for acting in the interests of "a narrow political base."
"As I have said from the start, local school boards should decide what is needed to keep students healthy and safely learning in person," Filler-Cord wrote. "I continue to hope the Governor will repeal his order and end the need to pursue further legal challenges, it is time the Governor put our children first."
A spokesperson for Jason Miyares, the attorney general for Virginia, issued a statement arguing Youngkin's order is in line with how former Gov. Ralph Northam (D) used emergency orders.
"By empowering parents with an opt-out option for face masks, Governor Youngkin is simply using the same executive powers used by Governor Northam to alter our response to the same pandemic" the statement says. "We are disappointed that the trial court did not fully agree with our interpretation of the law and we are preparing to appeal today's ruling.”