Henrico Schools keeps mask rules; Youngkin's order says parents don't have to abide

Despite an executive order from Gov. Glenn Youngkin Saturday that will terminate the statewide health order requiring masks in K-12 schools, Henrico Schools officials said Sunday night that their masking rules will remain in effect.

The executive order clashes with a state law that requires schools to follow guidelines from the Centers for Disease Control and Prevention to the greatest extent practicable. For now, CDC guidelines recommend using masks in school buildings.

A statement Sunday night from Henrico County Public Schools officials cited the state law and reaffirmed the Henrico School Board's decision to require masks inside school.

“The HCPS School Board and administration respect that parents make decisions for their families; however, division leaders must make decisions for the collective safety of nearly 49,000 students and 10,000 employees and fulfill HCPS’ responsibility to provide in-person instruction,” the news release said.

The governor’s executive order, which takes effect Jan. 24, states that parents may elect for their children not to be subject to any mask mandate in effect at the child’s school. No parent who chooses to opt their child out of a school mask mandate shall be required to provide a reason or make any certification concerning their child’s health or education, according to the order.

But Henrico and at least 11 other school divisions in the state (including Fairfax, Prince William, Loudoun, Albemarle, Roanoke and Richmond) have announced that they'll keep their mask requirements in place.

“By saying that parents don't have to listen to localities, [Youngkin is] encouraging conflict as a way to, I think, take it to the courts,” said Del. Schyuler VanValkenburg (D-Henrico), who contributed to the language in the state law that requires schools to follow CDC guidance. “The school can say, ‘Hey, Johnny, you have to wear your mask. It's a school policy.’ And then the kid can say, ‘Well, the governor said I don't have to.’ When the first school system punishes a kid for that, it'll end up in the court system. That's where the courts will settle the issue.”

HCPS Spokeswoman Eileen Cox said that the school division will continue to consult with its legal counsel.

“We’ll do the same thing that we've done all year, which is work with individual families to see what – if any – alternatives are available,” Cox said. “But there is an expectation, and all parents and families signed an acknowledgement of the expectation that students will be wearing masks. That happened at the very beginning of the school year.”

The law that requires schools to follow CDC guidance, Senate Bill 1303, was originally introduced by Sen. Siobhan Dunnavant (R-Henrico) as a one-sentence bill, mandating a return to in-person instruction.

House Democrats, including VanValkenburg, added language onto the bill that requires schools to follow mitigation strategies from the CDC “to the maximum extent practicable.” It passed last year with a strong bipartisan vote.

The law stoked conflict in August after the CDC amended its guidance to urge masks for everyone in K-12 schools regardless of vaccination status. State lawmakers argued over the interpretation of the language that states schools must follow CDC guidance “to the maximum extent practicable” — emphasis on the word “practicable.”

Soon after, then-State Health Commissioner M. Norman Oliver released a health order mandating that masks be worn in all public and private K-12 schools by everyone 2 years and older. The order took the decision-making process out of the hands of local school boards and temporarily quelled the conflict over the interpretation of SB 1303.

HCPS had announced a mask-optional policy in late July, when the COVID-19 transmission level in Henrico was considered moderate. A couple of weeks later, Henrico School Board members voted unanimously to approve the updated recommendations from the HCPS health committee and require masks in schools. Coincidentally, the vote came just as the health order was released.

Any future change to HCPS masking rules would come from a school board vote, Cox said.

“I'm not saying there is a change looming, but if or when it is safe, and we feel that it is safe based on CDC guidance, then the school board would have to approve any change to our current mask policy,” Cox said. “Everything is based on our current circumstances.”

Dunnavant chimed in Monday afternoon and released a statement that said, "SB1303 does not mandate the use of masks in school because the CDC does not mandate masks."

While the CDC is one of the largest federal health agencies in the U.S. and has been seen as a leader in the COVID-19 response, the agency itself  does not have the power to mandate masks. It makes recommendations.

The Youngkin administration did not respond to requests for comment from the Citizen.

Youngkin appeared on "Fox News Sunday” in his first interview since being sworn into office and spoke about his executive order regarding masking in schools.

“We are providing parents an opt out, we're providing them the ability to make the right decision for their child with regards to their child's well being,” he said in the interview. “We are going to use all the authority that… I have to consider all options to protect that right. And I think this is exactly what Virginians voted for in November, and we delivered yesterday.”

Disagreement about the conflicting nature of Youngkin's order and the state law ultimately could be resolved by the Virginia Supreme Court, if anticipated legal challenges occur.

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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.