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The Virginia Supreme Court on Monday dismissed a lawsuit that claimed Gov. Glenn Youngkin’s executive order to permit parents to exempt their children from school masking requirements violates the state constitution.
The lawsuit was filed Jan. 18 by a group of Chesapeake parents who claimed that the governor’s 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.”
In its dismissal, the Supreme Court said that the state law, SB 1303, “gives the [school] boards a degree of discretion to modify or even forgo those strategies as they deem appropriate for their individual circumstances.”
That discretion persists even if the executive order’s masking exemption provisions are unlawful, according to the court.
Although the lawsuit was dismissed, the Supreme Court offered no opinion on the legality of the executive order or any other issue pertaining to the claims described by the parents in the lawsuit.
Still, Virginia Attorney General Jason Miyares interpreted the decision as a win for the Youngkin administration.
“The governor and I are pleased with today’s ruling,” Miyares said in a statement. “We agree with the Court’s decision and will continue to defend the executive order. This is a victory for Virginia families.”
But House of Delegates Minority Leader Eileen Filler-Corn, a Democrat, disagreed.
"Today's court decision has no bearing on the decision that came down Friday in favor of local school boards against Governor Youngkin's unconstitutional executive order," she said in a statement. "Governor Youngkin and Attorney General Miyares are falsely applauding today's ruling out of Chesapeake on a separate case, causing further confusion on the governor's unconstitutional executive order and what it means for Virginia families. We all want our schools to remain safe and open for in-person learning. We also want a return to normal for our students, but the timing and decision should be driven by science and local communities, not politics."
Two remaining lawsuits
The lawsuit filed by Chesapeake parents that was dismissed Monday was the first of three lawsuits regarding Youngkin’s order to rescind the K-12 mask mandate. The two additional lawsuits remain active – one in federal court and one in the Arlington County Circuit Court.
A lawsuit filed in federal court Feb. 1 by the ACLU of Virginia involves the mother of Henrico County Public Schools students. The suit claims that Youngkin’s executive order violates federal antidiscrimination laws.
The Henrico parent, Elizabeth Burnett, has a sixth grader who attends Quioccasin Middle School. The 11-year-old boy has interstitial lung disease and is immunocompromised.
If the HCPS mask requirement was lifted, his parents would have to take him out of school based on the advice of his medical team, Burnett told the Citizen on Monday.
“But from an educational and psychosocial standpoint, it's not the decision that we would want to make for him,” Burnett said. “We don't feel that it's providing an equitable situation for my son, and other children like him.”
Burnett, along with 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. The suit asks for a permanent injunction lifting the executive order.
It could take quite a bit of time for the lawsuit to play out in court, said Kaitlin Banner, deputy legal director for the Washington Lawyers' Committee for Civil Rights and Urban Affairs. But there’s also the possibility of asking the judge to escalate things or to move for preliminary relief, which Banner said the legal team is considering if and when appropriate.
Burnett’s son wears a K95 mask during the school day, even though he has 50% lung function, his mother said. He eats in a classroom with his twin brother and another student to avoid being exposed to COVID-19 during lunch when students remove their masks to eat.
“We are very, very careful and have a lot of things in place to try to protect him,” Burnett said. “It would be a completely different picture if other students were unmasked. He would not be able to attend.”
Another lawsuit against Youngkin, which was filed Jan. 24 in Arlington County Circuit Court, was brought on by seven school boards. It claims that the executive order undermines the authority vested in school boards by the General Assembly in SB 1303 to implement a reopening plan consistent with recommendations from the CDC.
On Friday, an Arlington judge temporarily blocked the order. Monday’s ruling by the Supreme Court of Virginia doesn’t affect that temporary restraining order.
Following the ruling Friday afternoon, Henrico County Public Schools officials announced that schools will no longer allow students to attend school without wearing masks. HCPS didn’t rescind its universal masking requirement following the governor’s order— but it did allow some students to defy rules at the insistence of their parents.
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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.
