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Virginia Supreme Court dismisses mask mandate petition

Glenn Youngkin
Posted at 4:20 PM, Feb 07, 2022

RICHMOND, Va. -- The Supreme Court of Virginia on Monday rejected on procedural grounds a petition from parents seeking to invalidate Republican Gov. Glenn Youngkin's executive order prohibiting school systems from enforcing mask mandates in the classroom.

Youngkin and Republican Attorney General Jason Miyares are battling in court on multiple fronts to defend the executive order. But the ruling is far from definitive. In a footnote, the justices say they offer “no opinion on the legality of EO 2,” the executive order that seeks to undo mask mandates, which are aimed at preventing the spread of the coronavirus.

The Supreme Court ruling only dismisses the petition - submitted by a group of parents in Chesapeake - that sought an unconventional form of relief called a writ of mandamus. The court ruled that writs of mandamus are reserved for extraordinary circumstances, which it said don't exist in this case.

Still, Youngkin and Miyares each issued statements calling the ruling a victory for parents in Virginia.

Miyares said the state has "better risk mitigation strategies and vaccines, and we know much more about the efficacy of requiring children to wear masks all day ” two years into the pandemic, Miyares said in a statement.

But Kevin Martingayle, a lawyer who filed the petition on behalf of the Chesapeake parents, said the ruling is only a procedural defeat, and noted language in the court's opinion suggesting that local school boards have “a degree of discretion” under state law on whether to impose mandates.

“This is far from over,” Martingayle said in a statement.

“The most insight we can get from this particular decision is that whether or not require masks is a discretionary choice left to local school boards,” said Jack Preis, a law professor that the University of Richmond about the Chesapeake ruling.

“Here's where we are right now. If your school board wants to adopt a mask mandate, the guidance we have so far is that it's completely lawful, and they're allowed to do that. If your school board wants to go mask optional, we still don't know quite whether or not that is permissible. This opinion suggests that there's a good chance it's permissible, but doesn't conclusively resolve that,” Preis continued.

Much of the legal wrangling over Youngkin’s order centers around SB 1303, a state law passed last year requiring schools to open during the pandemic while following CDC guidance to the “maxim extent practicable.”

However, the law expires in August, so Preis said any legal decision now could have a short shelf life and called the fall a “wild west” scenario.

“Come the fall if there is still a reason to use masks, it’s going to be up to each school district because I don’ think we’re going to see new legislation, and at that point, the Governor may have the ability depending on the type of order he issues, to try to step in,” Preis said.

The ruling comes three days after an Arlington county judge issued a temporary injunction barring enforcement of Youngkin's executive order while the case proceeds. In that case, the judge ruled preliminarily that Youngkin does not have the authority given to local school boards under state law to decide what steps are necessary and practicable in keeping students and staff safe during in-person learning.

Youngkin and Miyares have promised to appeal the Arlington judge’s decision, and the case is expected to reach the Virginia Supreme Court. There is no timetable yet for when that case will be resolved.

A third lawsuit is scheduled for a pretrial hearing in Loudoun County, where parents opposed to the mask mandate are suing the local school board for refusing to enact Youngkin's executive order.

Youngkin issued the order on his first day in office last month. Since then, some school boards have eliminated mask mandates that were required under the previous administration, while others have defied his order, arguing it usurps local authority and dismantles a policy that has worked well in reducing transmission of the coronavirus.

Meanwhile, local families continue to grapple with decisions made by their local school district.

Rachel Kulak sent her son to high school in Henrico Monday without a mask, but she said he was given one at school. Kulak said her family disagrees with Henrico’s universal masking policy.

“In order to not feel targeted, he put it completely under his chin,” Kulak said of her son. “I think the biggest problem is these children and these families feel bullied and intimated. Nobody wants their child to get suspended or their grades go down. My son’s grades have certainly gone down from not being able to be in the classroom and learn.”

Henrico County school officials previously told the Henrico Citizen that about a dozen families out of more than 50,000 students were choosing to defy the masking policy. Kulak said she believes that number is higher.

Lindsey Dougherty has two children in Chesterfield County Schools, where the school board voted to make masking optional.

Her son has special needs, but she said her doctor told them mitigation strategies in schools that made it safe for him to attend classes in person.

Dougherty said the decision to end universal masking undercut her confidence in his safety and the consensus from a majority of medical experts that masking does reduce the odds of spreading and catching COVID in public settings.

“I would really like to not be this constant give and take, push and shove,” she said, comparing masking to wearing seatbelts in cars. “This practice of masking is very similar to that. I know that not everyone is going to die if they contract COVID, but it’s an extra level of protection for me, my children, and all of my community.”

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