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The mother of a Henrico County Public Schools student is part of a lawsuit against Gov. Glenn Youngkin and his administration filed in federal court Tuesday. The suit claims that the governor's executive order, which rescinded the statewide K-12 mask mandate, violates federal antidiscrimination laws.
This is the third lawsuit challenging the legality of Youngkin's executive order.
The Henrico parent, Elizabeth Burnett, is suing on behalf of her 11-year-old son, who attends Quioccasin Middle School.
The boy has chronic lung disease and is immunocompromised, which substantially limits his breathing and the major bodily function of the respiratory system, according to the lawsuit filed by the American Civil Liberties Union of Virginia. Because of his disabilities, the boy is at high risk of severe illness if he contracts COVID-19.
HCPS mask mandate is still in place. However, school administration is allowing some students to violate the rules.
If there is no longer a mask mandate in HCPS, the boy’s parents said they will have to choose between sending him to school and putting his safety at heightened risk, or withdrawing him from school and risking his educational progress, according to the suit.
Burnett, along with 10 other parents of students with disabilities statewide, claim in the lawsuit that Youngkin’s executive order violates the Americans With Disabilities Act and other federal law that provides broad protections for people with disabilities.
“By refusing to allow school districts to even consider whether to implement universal mask requirements as needed to protect the health and safety of the children they serve, the governor’s order has placed unlawful barriers to educational access for students with disabilities,” said Eden Heilman, the ACLU of Virginia's legal director in a statement. “The governor is preventing some of the state’s most vulnerable children from returning to, or remaining in, public schools.”
The lawsuit asks the court for a permanent injunction lifting the executive order.
Other school children represented in the suit include those living with disabilities such as cancer, cystic fibrosis, moderate to severe asthma, Down syndrome, lung conditions, organ and blood stem cell transplants and diabetes.
Along with Youngkin, the other defendants named in the suit are Attorney General Jason Miyares, State Superintendent Jillian Ballow and Acting State Health Commissioner Collin Greene.
According to the suit, those officials are forcing parents of students with disabilities to choose between keeping their children at home and forfeiting their children’s education, or placing them in an environment that presents a serious risk to their health and safety.
Another plaintiff, Lindsey Dougherty, has a son in neighboring Chesterfield County Public Schools. Her son has an autoimmune disorder, and she pulled him from school after the Chesterfield School Board voted to rescind CCPS’ mask rules.
Burnett's son also has a twin brother, who would also have to withdraw from school if the HCPS mask mandate is lifted, on the advice of the boy’s pediatrician. This is particularly challenging, Burnett said, because the brother has autism and requires in-person support and services.
Youngkin signed the executive order that terminated the statewide mask mandate in K-12 schools on the day of his inauguration. The order states that parents may elect for their children not to be subject to any mask mandate in effect at the child’s school.
The day after Youngkin signed the order, HCPS announced to families that its mask requirement would remain in place. Henrico Schools officials cited existing state law (Senate Bill 1303, passed last year), which requires schools to follow guidance from the Centers for Disease Control and Prevention. Those guidelines include universal masking in K-12 schools.
Superintendent Amy Cashwell said before the executive order went into effect Jan. 24 that HCPS is not “pushing back personally on the governor or taking any kind of political stance.”
But despite HCPS’ continued mask requirement, not all students are wearing masks at school.
Last week, a group of 13 students at Deep Run High School completed their work from the school’s auditorium at the direction of school administration, because their parents would not allow them to wear masks, citing the governor’s order.
On Monday, those maskless students were allowed back inside their classrooms.
Only the teachers of those 13 students were notified, via email on Friday afternoon, that the rules surrounding these students were changing.
Other teachers, along with students and parents, were not told that unmasked students would be in classrooms this week, according to several parents and teachers.
The number of maskless students began to expand beyond the original group of 13 this week, parents of those students told the Citizen.
A Deep Run teacher who spoke to the Citizen on condition of anonymity for fear of retribution said that the situation has caused confusion among students and has put teachers in an uncomfortable situation.
“It is incredibly hard because the kids ask, ‘Why does he not have to wear a mask?’ I can’t say, ‘because his parents are the ones that are complaining and yelling,’” the teacher said. “I feel like it's pitting students against students. It's also pitting teachers against each other because certain teachers are totally cool without masks whereas other teachers don't allow it.”
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Anna Bryson is the Henrico Citizen's education reporter and a Report for America corps member. Make a tax-deductible donation to support her work, and RFA will match it dollar for dollar.
