An Arlington County judge on Thursday sided with northern Virginia’s liberal school boards, and against Republican Gov. Glenn Youngkin, in an early battle over the school districts’ refusal to abide by an Executive Order that would allow parents to exempt children from mask requirements in schools.
The order denied a temporary restraining order in favor of preserving the status quo while litigation proceeds — which, in northern Virginia, means school districts maintaining policies requiring universal masking.
The court indicated that in a state of emergency, governors can issue executive orders that are equal to laws–including the executive orders used by Youngkin’s Democratic predecessor Ralph Northam to require masks, and Youngkin’s EO 2, which undid that.
But a law passed in 2021 to require schools to finally re-open — backed mostly by Republicans who wanted to force northern Virginia’s schools to stop relying on virtual learning — also included language saying that the schools “shall… provide such in-person instruction in a manner in which it adheres, to the maximum extent practicable, to any currently applicable mitigation strategies… that have been provided by the federal Centers for Disease Control and Prevention.”
The CDC recommends masking in schools, although, as those who oppose mandatory masking have pointed out, the CDC also recommends many other coronavirus measures that school boards haven’t required. Nonetheless, that set up a situation where two equal orders contradicted each other, the judge said.
County school boards argued that they have essentially carte blanche to run schools as they see fit. But the judge noted that the situation is not so simple; clearly, they are constrained by some state rules. “It stands to reason, therefore, that the General Assembly would have a strong hand in regulating and issuing legislation affecting education in the Commonwealth,” Judge Louise M. DiMatteo wrote.
She wrote that Youngkin would not suffer “irreparable harm” if she did not unmask children now.
“Keeping rules in place that have been established over the school year helps children, families and staff understand how they may be impacted during the pandemic… During the time the case is pending there appears to be a benefit to keeping the current policies in place,” particularly because SB 1303 ends in August.
The Arlington case is not the only court challenge on masking in Virginia schools. A case brought by parents from Virginia Beach is before the Virginia Supreme Court. And Youngkin and Attorney General Jason Miyares have requested to join, as plaintiffs, a case brought by parents against Loudoun County Public Schools.
Miyares has said that if a court doesn’t find that an executive order can unmask children, then they will seek a “legislative fix.”
Chap Petersen, a moderate Democrat who joined with Republicans to force school re-opening last year, demanded that Fairfax County Public Schools issue “a final deadline (e.g. Valentine’s Day). They should announce that immediately. The forced masking policy is going to end very soon, i.e. in a few weeks. Otherwise, the General Assembly will again step in. IT IS NOT AN ACCEPTABLE LONG-TERM SOLUTION.”
With the House of Delegates in Republican control and the Senate narrowly in Democrats’ favor, such a bill could pass with Petersen’s support.
However, there could be procedural hurdles. Before getting to a floor vote, the bill would have to get out of committee, where Democrats have a larger advantage.
Virginia procedures also cause many bills not to go into effect until July, unless they are passed as emergency bills, which require a larger majority.
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