Virginia school districts respond to Governor's new mask order; expert weighs in

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Posted at 9:36 PM, Jan 16, 2022

RICHMOND, Va. — Virginia school districts are responding differently to an executive order signed by Governor Glenn Youngkin (R) in the early hours of his administration.

Executive order two says, “parents of any child enrolled in a elementary or secondary school or a school based early childcare and educational program may elect for their children not to be subject to any mask mandate in effect at the child’s school or educational program.”

Several school districtsfrom Northern Virginia to Richmond have publicly stated they plan to maintain their indoor mask requirementsto decrease the spread of COVID-19 in school buildings, despite Youngkin’s action.

Richmond Public Schools “will maintain its 100% mask mandate for students, staff, and visitors,” tweeted RPS Superintendent Jason Kamras Saturday.

Sunday afternoon, Henrico Schools said they plan to continue indoor masking at their buildings.

“Mask use is a vital component of the division’s layered prevention measures, which reduce the spread of illness in our schools and increase the division’s ability to offer in-person instruction as mandated by state law,” the HCPS announcement read.

Sunday morning while greeting Virginia Capitol workers, Youngkin defended his order.

“We will use every resource within the Governor’s authority to explore what we can do and will do to make sure parent’s rights are protected,” Youngkin said, noting school districts have eight days to comply. “The code of Virginia is really clear: parents have a right to make decisions with regards to their children’s upbringing, education, and care.”

Chesterfield Schools said in an email to families Sunday night they were reviewing Youngkin’s order and will make a final decision before it takes effect on Monday, Jan. 24.

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The actions of the new Governor and local school districts beg the question: who has it right legally?

CBS 6 spoke with Jack Preis, a law professor at the University of Richmond.

Preis noted what other critics of the order have cited, a new state law passed in 2021 that says school districts must adhere to CDC COVID mitigation guidelines to the “maximum extent practicable” when schools are open during the pandemic.

Currently, the CDC lists universal indoor masking as a recommendation for schools. Youngkin's order questions whether the CDC’s guidance has been proven statistically effective in slowing transmission in schools.

“Governors don’t have the authority to issue any order that would be in violation of state statute or other provision of higher law,” Preis said. “What that statute did was essentially say follow CDC guidelines, unless you a really good reason not to. Now that this executive order comes in, it seems to be saying ‘school boards don’t require anyone to follow CDC guidelines or don’t adopt CDC guidelines on their own. That’s not what the statute requires.”

Some school districts might use Youngkin’s order as a way of withdrawing mask requirements, Preis said. Importantly, he points out the text of the order mentions the rights of parents, not what is required of school districts by state code.

“My guess is that Governor Youngkin realized that if he focuses the order on what school boards can do, it brings it into more obvious conflict with the state statute,” Preis said. “So, what he tried to do instead is focus on the rights of parents. It also has the benefit from his perspective of being able to tell parents, ‘look at my order, it speaks directly to you.’ Just because it speaks to parents, however, doesn’t mean it can avoid the strictures of the state statute.”

It is likely a parent in Richmond or Henrico could challenge the mask orders citing Youngkin’s action, a battle that has the potential to end in court, Preis said. If that happens, it would likely be decided by the Virginia Supreme Court through appeals.

You can read the text of the order here.