Court upholds mask mandate, pauses Youngkin order

Published 6:25 pm Friday, February 4, 2022

An Arlington County Circuit Court granted seven school boards a temporary restraining order against Gov. Glenn Youngkin’s executive order making masks in K-12 schools optional.

The order comes on the heels of two other pending legal challenges to the order, and in the wake of widespread defiance among local school boards — including Isle of Wight and Surry counties’ — that have opted to continue enforcing their mask mandates.

The school boards of Arlington, Fairfax and Prince William counties joined with those of the cities of Alexandria, Richmond, Falls Church and Hampton in contesting Youngkin’s authority to use his executive powers to rescind the universal K-12 mask mandate issued last August in the wake of a surge in COVID-19 cases fueled by the highly contagious delta variant.

Youngkin, a Republican, issued the order Jan. 15 — his first day in office. It took effect Jan. 24.

The school boards had argued Youngkin’s order undermined their authority under a 2021 state law — Senate Bill 1303 — which requires public schools to provide in-person instruction in a manner that adheres to CDC guidance. The CDC still recommends universal masking by all students ages 2 and older, teachers and visitors regardless of vaccination status.

“The single issue before the Court is whether the Governor, via his emergency powers, can override the decision of local school boards delegated to them under SB 1303,” writes Judge Louise M. DiMatteo. “On this pivotal point, the Court concludes that the Governor cannot.”

The fact that there’s a sunset provision in SB 1303, making the law no longer effective after Aug. 1, “again tips in favor of the School Boards,” DiMatteo adds.

Youngkin spokesman Macaulay Porter said the governor plans to appeal the ruling.

“The governor will never stop fighting for parents’ ability to choose what is best for their children,” Porter told The Smithfield Times via email. “The governor often said that this is not a pro-mask or anti-mask debate. It’s about parents knowing what’s best for their child’s health, and opting-out should there be a mask mandate. More voices, including from the scientific and medical community, call into question the efficacy behind a universal mask mandate for children. This is about what’s best for their kid’s health and who can best make that decision.”

House of Delegates Minority Leader Eileen Filler-Corn (D-Fairfax) issued a prepared statement Friday afternoon calling the Arlington court’s ruling “a victory for our children, the health and safety of our communities, and all of us who believe public health policy should be driven by science not politics.”

Isle of Wight’s School Board had voted 4-1 on Jan. 20 to continue requiring all students, staff and visitors to stay masked. Surry’s School Board voted unanimously on Jan. 27 to do the same.

The same week as Isle of Wight’s vote, 13 Chesapeake parents filed a lawsuit asking the state Supreme Court to declare Youngkin’s order “void and unenforceable.” The Supreme Court has yet to rule on the case.

A third lawsuit filed this week by 11 parents whose children have disabilities is pending in federal court, in Virginia’s Western District. The suit alleges Youngkin’s order “strips schools of their ability to comply with their obligations to students with disabilities under the Americans with Disabilities Act and Rehabilitation Act.”

Isle of Wight School Board Chairwoman Denise Tynes was unable to be immediately reached for comments on the ruling.

Youngkin’s order making masks optional had referred to the nationally dominant omicron variant as “less severe” than delta, a statement with which the CDC’s morbidity and mortality weekly report now agrees. However, the number of children hospitalized with COVID-19 nationwide was still well above the peak of last year’s delta wave, according to CDC data for the week ending Jan. 29 — though the number has fallen sharply from the record-breaking pediatric hospitalizations seen the first week of January.