Table of Contents
A lawsuit filed Tuesday in the Supreme Court of Virginia claims that Gov. Glenn Youngkin’s executive order rescinding the statewide mask mandate in K-12 schools is unconstitutional. It's the latest development in a quickly developing dispute between the new governor and parents and school districts that want to continue mask requirements in their schools.
The governor’s order – which would allow local school districts to keep or establish their own mask mandates but also would allow parents to opt their children out – is set to take effect on Monday. But the lawsuit could prompt the Supreme Court to delay the effective date of the order, said attorney Kevin Martingayle, who is representing the plaintiffs.
A group of 13 parents of students enrolled in Chesapeake City Public Schools are suing the governor along with Acting State Health Commissioner Colin Greene, Acting Superintendent of Public Instruction Jillian Ballow, the Chesapeake County School Board and CCPS Superintendent Jared Cotton.
They contend that the governor’s order clashes with a state law, Senate Bill 1303, which 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.
But the governor’s order would suspend the existing law, according to Martingayle – something that is prohibited by the Constitution of Virginia. The lawsuit also notes that the responsibility for public school education is divided between the General Assembly and local school boards – and does not involve the governor a great deal.
“The governor has a very limited role when it comes to maintaining and supervising public schools,” Martingayle told the Citizen. “Even if there wasn’t a legislative enactment involved here that he is violating, I still don't think he's got the authority as a general matter. That authority belongs to the General Assembly and to the local school boards, and it's right there in the constitution of Virginia.”
According to the Code of Virginia and the state constitution, the General Assembly is charged with the responsibility of providing the system and making sure that it is of high quality, and the daily supervision of schools falls to local school boards. The governor is not vested with the type of authority that would be required to lawfully enact the executive order, according to the lawsuit. The only mention of the governor in Article VIII of the state constitution is that he or she appoints and receives reports from the state Board of Education.
Youngkin’s spokesperson Macaulay Porter told the Citizen that the governor will “consider all options available and all tools at his disposal to ensure parents can make decisions about their children’s upbringing, education, and care.”
* * *
Youngkin campaigned on the promise of removing the statewide mask mandate, but his executive order goes a step further by empowering parents to ignore local mandates. During an appearance on Fox News Monday, Lt. Gov. Winsome Sears said that “there are certain combinations of monies that we send to the state and to the local school boards, and [Youngkin] could withhold some of that” if school divisions choose not to comply with the executive order.
Porter did not directly answer a question from the Citizen regarding how the governor might withhold funds.
House and Senate Democrats held a press conference Tuesday morning addressing the possibility.
In the “worst case scenario,” there will be a lawsuit if Youngkin seeks to withhold funding, said Sen. Jennifer McClellan (D-Richmond).
Despite statements from Republican legislators, Democrats on Tuesday insisted that the state law, SB 1303, is “very clear.”
“If our professed goal is that we want to have academic excellence in schools, and that we want to be having a world class education for all children, why we would deprive them of the funding needed to achieve that goal just blows my mind. It is baffling,” said Henrico Del. Schuyler VanValkenburg, who authored the language in SB 1303 that requires schools to follow CDC guidance. “If what we care about is kids, why would we implement a policy – which isn't legal – but why would we implement a policy which hurts them?”
Del. Jeff Bourne (D- Richmond) said Tuesday that while the governor is talking about “exploring all options” to enforce the order, that Democrats will do the same, in order to do the opposite.
“We would not take any option off the table to make sure that we are continuing to protect, invest in our kids in Virginia,” Bourne said. “Removing the mask mandate and allowing this confusion is so detrimental to our children's education and their health.”
* * *
Ironically, the Howell v. McAuliffe case is cited twice in the Chesapeake group's lawsuit. In 2016, then-Governor Terry McAuliffe tried to engage in mass reinstatement of felons’ voting rights, but the way he went about it was challenged by several Virginia public officials. McAuliffe’s actions were declared to be invalid, for many of the same reasons that are cited in the lawsuit against Youngkin, who was inaugurated Saturday after defeating McAuliffe in the latter's attempt to win a non-consecutive second term.
Henrico County Public Schools is continuing its masking rules, officials reiterated to families and staff on Sunday night.
“HCPS is not trying to push back against the governor or his order, the school board and administration is simply upholding its responsibility as mandated by law,” HCPS spokesperson Eileen Cox said on Tuesday. “Also, as CDC guidance changes, the HCPS school board will have the opportunity to consider potential changes to division practices for use of face masks and our other layered mitigation strategies. For now, it is the status quo.”
The next steps for the Virginia Supreme Court could be to delay the effective date of the executive order, and set up an expedited briefing and argument schedule. Otherwise, the order will take effect Monday.
“We need a very quick response from the Supreme Court to avoid having this executive order take full effect on Monday,” Martingayle said. “I do expect they'll do something.”
* * *
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.
