Gov. Glenn Youngkin says he will “consider all options” to preserve an opt-out for parents from local school mask mandates amid pushback from some school districts and some Democrats who say state law requires Virginia to follow federal guidance that recommends masks in schools.
Carl Tobias, a law professor of the University of Richmond, says that whoever brings a challenge to the governor’s order, the dispute has a likely destination: “to the courts.”
On Saturday, shortly after he took office as Virginia’s 74th governor, Youngkin issued nine executive orders, one of which ends the statewide COVID-19 mask mandate in K-12 schools beginning Jan. 24. The order specified that parents have the right to exempt their children from such local school systems’ mandates.
“We said all along that we were going to stand up for parents,” Youngkin said in an interview with “Fox News Sunday.”
“In Virginia it is clear under law that parents have a fundamental right to make decisions for their children’s upbringing, their education and their care,” Youngkin said. “And so we are providing parents an opt-out. We’re providing them the ability to make the right decision for their child with regard to their child’s well-being.
“We are going to use all the authority that I have to consider all options to protect that right,” he said.
Richmond Schools Superintendent Jason Kamras had tweeted Saturday afternoon: “@RPS_Schools will maintain its 100% mask mandate for students, staff, and visitors.”
The city of Alexandria’s school system said in a statement Sunday that it “will continue to abide by the health and safety guidelines of the CDC and the Alexandria Health Department and continue to require all individuals to wear masks that cover the nose and mouth in ACPS schools, facilities and buses.”
Fairfax County’s school system said it is reviewing the “operational implications” of Youngkin’s order but that it also plans to continue to require students and staff to wear masks. Arlington County’s public schools said in a statement Saturday evening that its mask requirement is unchanged.
Like those Northern Virginia school systems, Del. Sally Hudson, D-Charlottesville, asserted in a tweet Sunday that state law requires the state to follow CDC guidance, which recommends universal indoor masking by all students ages 2 years and older, staff, teachers, and visitors to K-12 schools, regardless of vaccination status.
Youngkin has said he is vaccinated and got a booster shot, but that he opposes mandates. Another of his executive orders rescinds the COVID vaccination requirement for state workers.
On Aug. 10, the Chesterfield School Board approved a mask mandate, and the Hanover County School Board voted against requiring students or staff to wear masks. Henrico requires students and staff wear masks while indoors.
Two days later, Gov. Ralph Northam mandated that all K-12 schools in the state require masks for students and teachers, less than a week after saying a state law already rendered them compulsory. The order from state Health Commissioner Norman Oliver overruled decisions from several school boards – including in Hanover County – rendering masks optional.
Youngkin says in his executive order that Oliver’s August order is out of date, partly because it “explicitly relates to the delta variant and not the omicron variant, which results in less severe illness.” Youngkin’s order also notes that children ages 5 and older are now eligible to get vaccinated.
Youngkin’s order also cites a section of state law under parents’ rights that says: “A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.”
The governor’s order says no parent who opts their child out of a local school mask mandate “shall be required to provide a reason or make any certification concerning their child’s health or education.”
Youngkin’s order claims that the Centers for Disease Control and Prevention has found no statistically significant link between mandatory masking for students and reduced transmission of the virus.
While the science behind universal masking in schools has been debated, the CDC has defended it, saying in a statement updated Dec. 17 that K-12 schools should employ universal indoor masking regardless of vaccination status. Experts generally believe wearing masks prevents transmission of the virus to some degree.
CDC director Rochelle Walensky has touted a controversial Arizona study that found schools in two of the state’s most populous counties were 3.5 times more likely to have COVID-19 outbreaks if the school did not have a mask requirement at the start of school compared to schools that required masking on Day 1.
But that study has been called unreliable by other health experts who claimed the schools in the study that saw higher infection rates had been open longer than schools that saw less. The study also was criticized for not tracking the vaccination status of the students and staff in the study.
The CDC says that a layered approach of multiple prevention strategies decreases the risk of transmission. These strategies include vaccination, consistent and correct use of masking for people not fully vaccinated, distancing, screening tests to identify cases, improved ventilation, handwashing, staying home when sick, contact tracing and routine cleaning.
A spokesperson for Youngkin did not immediately respond to a request for comment.
Before Oliver issued the Aug. 12 order instituting the statewide mandate, the Northam administration had insisted there was no need for executive action since a state law Northam signed last spring requiring schools to offer in-person instruction directs school districts to follow CDC guidelines to the “maximum extent practicable.”
But state Sens. Siobhan Dunnavant, R-Henrico, and Chap Petersen, D-Fairfax City, who sponsored the bill, took issue in August with Northam’s characterization of their Senate Bill 1303, saying they did not mean it to be a mask mandate.
The bill “advises that in order for schools to be open this year they follow CDC guidelines to the maximum extent practicable,” Dunnavant said in an August statement. “Translated – open schools and be adaptable to our children because in-person education is the most important thing. Mandates aren’t adaptable.
“We are both doctors and lawmakers,” Dunnavant said at the time. “Governor Northam knows the language in the bill is not a mask mandate. He should take leadership and own his decisions, not make excuses for policies he wants to implement.”
Petersen said at the time: “The entire purpose of the bill was to give local School Boards flexibility in adopting mitigation strategies.”
Tobias, the University of Richmond professor, said Sunday that he respects the bill’s co-sponsors, but “their intent doesn’t carry the day,” though they could file a brief to make their assertions part of a court record.
Tobias said that somewhere in the state a local school system or a parent is likely to go to court and argue that the state law that says Virginia must follow CDC guidelines to the “maximum extent practicable” supersedes the new governor’s executive order.
Tobias said that whichever way a circuit court rules, it likely would be appealed to the Court of Appeals, which could lead to a resolution in the Supreme Court of Virginia.
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