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Parents file lawsuit to keep masks in Virginia schools

Posted at 6:10 PM, Jan 18, 2022
and last updated 2022-01-18 22:46:10-05

RICHMOND, Va. -- A group of parents from Chesapeake is suing Virginia Governor Glenn Youngkin over an executive order signed this weekend that his administration said would allow parents to opt their children out of mask requirements at Virginia schools.

The lawsuit, filed Tuesday with the Supreme Court of Virginia, argued Youngkin’s order ignores a state law signed last year that required school districts to follow Centers for Disease Control and Prevention (CDC) COVID-19 mitigation guidelines to the “maximum extent practicable” when opening during the pandemic.

The CDC currently advises universal indoor masking in school settings.

“Executive Order Number Two purports to sweep aside masking mandates and other protections with little or no consideration of or respect for CDC guidance, actions taken by the Virginia General Assembly, or the powers vested in school boards,” the lawsuit read.

“The parents of any child enrolled in a [sic] 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,” the text of the governor's original order stated.

The Chesapeake parents have asked the Supreme Court of Virginia to vacate Youngkin’s order.

"This particular legal action isn't about trying to fight against parental rights. I mean, parental rights are very important. But the executive branch doesn't make the law and it doesn't get to override the law," Matthew Castillo, a plaintiff in the lawsuit, said.

CBS 6 has contacted Governor Youngkin's office for comment on the lawsuit, but his staff has not yet replied.

The state law passed in 2021 on a bi-partisan basis initially dealt with opening public schools to in-person learning, but mitigation strategies were added into the bill as it worked through both chambers of the General Assembly.

Since Youngkin signed his order on Saturday, multiple school districts throughout Virginia said they planned to maintain universal indoor masking requirements in an effort to slow the spread of COVID-19.

University of Richmond law professor Jack Preis previously told CBS 6 he thought the executive order was on shaky ground.

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“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. “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. 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.”

Prior to the news of the lawsuit, Youngkin and Republicans defended the order once again Tuesday. Democrats had highlighted comments made by Lt. Governor Winsome Earle-Sears on Fox News that the administration might withhold funding to districts that do not follow the executive order.

“Democrats willfully mischaracterized the Lieutenant Governor's comments to the press and played politics in an effort to delegitimize the rights of parents. This is the exact type of divisive partisan politics that Virginians rejected this fall,” Macauley Porter, a spokesperson for Governor Youngkin, said in a statement. “They still refuse to stand up for parents over their children's upbringing, education, and care. The executive order allows parents to opt-out of mask mandates so that they can make the best decisions for their children and anyone who wants to wear a mask is free to do so. Consistent with the governor’s past remarks, we will consider the tools available to make sure that parents' rights are protected.”

Sen. Siobhan Dunnavant, the Republican sponsor of the school reopening bill, said the CDC guidance portion of it was being misrepresented. She called the executive order an “off-ramp” for parents who are concerned with language and emotional development concerns from masking in schools.

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“You have to figure out how to comply with the mitigation strategies, but be practical,” Dunnavant (R - Henrico) said. “The Governor is saying: districts, you set your policy; parents, you have a right to opt out. I think he’s empowering each of the entities to make the decisions they need to make.”

Virginia Democrats called on Youngkin to rescind the order, during a Tuesday morning press conference.

“We support our school divisions doing what they need to do to keep our children, adults in our school buildings safe. We will not let the Governor overstep his authority,” Sen. Jennifer McClellan (D-Richmond) said.

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Democrats cited the state law and CDC guidance on masking in schools. The Virginia Chapter of the American Academy of Pediatrics also recommends universal masking in school settings, saying masks have proven an effective tool in slowing COVID transmission.

“It’s going to lead to more kids testing positive, more teachers testing positive. And while the omicron variant is less dangerous than ones in the past, it still means they’re out of the building,” said Del. Schuyler VanValkenburg (D - Henrico), who is a high school teacher. “Our schools are already strained. We have severe staff shortages and teacher shortages because they’re out sick. We have large segments to the student body absent because they are sick, tested positive. That’s a problem.”

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As a practicing doctor, Dunnavant said vaccines and ever-improving knowledge about the virus meant parents and families should now have more of a say in health practices at public schools.

“We need to be able to be nimble and adapt. The more we know in medicine the less we have to restrict how we manage an illness,” Dunnavant said.

A hearing date for the lawsuit has not been set yet.

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