RICHMOND, Va. -- - A sign on the front entrance of the Supreme Court of Virginia states that anyone entering the building is required to wear a mask during the COVID-19 pandemic.
A decision by the court’s justices about whether or not parents should have a right to decide if their child should wear a mask within a school building will have ripple effects throughout Virginia.
Executive Order 2, signed by Governor Youngkin on inauguration day, took effect midnight Monday. The Youngkin administration said it gives parents the right to opt out of school mask requirements, a stance that is now challenged in Virginia’s highest court.
School districts across Virginia took different approaches, with many larger districts keeping mask requirements in place and others allowing parents to opt their students out of masking.
The Youngkin administration cites a 2013 state law that says parents have the right to make decisions on their child’s “upbringing, education, and care” to justify the order. The text of that law is clear, but opponents point out it was originally passed to codify a case before the Supreme Court of Virginia that dealt with a sperm donor’s parent's rights.
The main case challenging the order involves parents from Chesapeake, who filed a lawsuit saying the Governor’s order ignores astate law passed last yearthat states schools should follow CDC. guidelines to the “maximum extent practicable” during the pandemic.
The CDC recommends universal masking, but Republicans point out the guidance does not say masking is mandatory.
Seven school districts, including the city of Richmond, have also filed a suit arguing that the executive order oversteps their authority to set health and safety protocols for their students and staff.
“You can’t really have it both ways, and one of these has to take precedence over the other,” said CBS 6 legal analyst Todd Stone. “It’s very clear that the governor is saying one thing, and the General Assembly last year said something different. And people are confused about it.”
Stone said legal precedence is clear governors cannot issue orders that run the countrary to state laws passed by the General Assembly. Even though the Youngkin administration argues Executive Order 2 simply gives parents a right to make decisions, Stone said the challengers seem to have a strong case.
Either way, he anticipates the Supreme Court of Virginia will act quickly.
“No matter what their decision is that’s something they’ll want to have out there publicly, really quickly, so that people have some clarity about how they’re going to behave,” Stone said.
State Senator David Suetterlein (R-Roanoke County) said he supports the executive order and believes it will hold up to court challenges. Suetterlein’s children attend public school in a district that kept their masking requirement and he said they wore masks Monday.
“If folks want to send their kids in masks, they’re free to do so. And other people that don’t want to do that, they’re free to make that same decision. In the meantime, while it plays out legally, we hope everyone will be respectful of each other, just like Governor Youngkin asked,” Suetterlein said. “I suspect [the Supreme Court of Virginia] will do the right thing and come down on the side of the law, which is also the side of parents in this case, and say parents get to decide.”
Amber Bowmer, one of the Chesapeake parents suing Governor Youngkin, said the order is putting the health and safety of students and teachers at risk to play politics.
“Teachers are tired,” Bowmer said. “It’s just unbearable, and to think that they’re putting their lives literally on the line for something as simple as wearing a mask. I just don’t understand it.”
A spokesperson for Attorney General Jason Miyares (R), who asked the court to dismiss the lawsuit, issued a new statement Monday:
“An unfortunate side effect of the COVID-19 emergency has been the irreversible harm to our children’s mental health and experience in the classroom. The attorney general stands by the governor's executive order. The General Assembly has given him the power to take appropriate steps to confront this emergency and his determination that parents should make decisions regarding the health, wellbeing and safety of their children was an appropriate use of that power. As we wait for the Supreme Court’s guidance, the attorney general’s office urges parents to listen to their principals. We have faith in the legal process and will not be commenting further on the pending litigation at this time.”
Although it does not match perfectly, many Virginians might remember when GOP lawmakers sued Gov. Terry McAuliffe’s order to restore voting rights to felons who served their time. The Supreme Court of Virginia ruled McAuliffe overstepped in that case.
Those involved in the Chesapeake lawsuit said they expect the Supreme Court of Virginia will issue a legal opinion in the case this week. As of now, no hearing date has been set.