Checkmate? Virginia senate passes bill to make Youngkin’s school mask opt-out a new state law

Remember this, which went viral a few days ago?

Now, remember Chap Petersen?

You might if you read this post. Petersen is a mavericky Democrat in the Virginia state senate, a good thing to be at the moment. Republicans control the governor’s office and the Virginia house but Democrats still enjoy a majority in the upper chamber — barely. It’s 21-19 there. Which means any single Democrat in the chamber can become his state’s version of Joe Manchin, deciding which policies will pass and which will fail by his willingness to partner with Republicans. If Petersen votes with the GOP, it’s 20-20. And Republican lieutenant governor Winsome Sears gets to break the tie.

To Glenn Youngkin’s great good fortune, Petersen is a skeptic of mandatory masking in schools dating back to last year. Two weeks ago, despite the liberal backlash to Youngkin’s executive order letting parents opt their child out of the state’s school mask mandate, Petersen threatened to cross the aisle and help the GOP put an end to the mandate by statute if the Fairfax County school board didn’t define an “off-ramp” for masking. Was he bluffing? Would the escalating legal war between Youngkin and pro-mandate local governments maybe make him lose his nerve?

Apparently not. Today Petersen went nuclear.

He sent a letter to the superintendent of the Fairfax County public schools too to make clear that he means business. It’s worth reading in full but this part is noteworthy:

More critically, the decision to wear a mask in public – when there is so little correlation with public health – makes it de facto a political decision. In other words, by wearing a mask in a public setting, the wearer is able to communicate a political message, e.g. “I Care About Others” or “I voted for Biden” or even “I’m Vaccinated.” The ability to communicate a political message is the essence of our First Amendment, but coercing others into adopting that statement, especially a student in a public school, is the exact opposite…

In 2021, the General Assembly solved the issue of school closures by ordering schools to reopen for in person learning five days a week via the passage of SB 1303. We stepped in because school districts were failing to do the right thing for children. This is not just my opinion – it is reflected in the fact that Virginia public schools, such as FCPS, had a record loss of enrollment in 2021, which has continued into the current year. Something is not right.

In the coming days, I will ask the Governor to either send down special legislation or amend existing legislation so as to end the Forced Masking of Children. We will pass that with a bipartisan majority and this sad episode will finally end.

Of course, FCPS is free to end the Forced Masking policy on its own accord. If it does so, I am confident there will the same public health impact as when we (i) re-opened schools, (ii) permitted school sports, and (iii) did away with the “six foot” rule inside school buildings. In other words, there will be no negative health effect and, again, Virginians will be wondering (like we did after the reopening of schools) how we ever allowed an unscientific and inhumane policy to last as long as this one did.

Are we sure this guy’s a Democrat?

Either way, he’s a senator. And his vote happens to be decisive. Looks like Youngkin read the room pretty well after all.

In fact, this turned out not to be a 20-20 vote. Once it became clear that Petersen’s bill would pass via tiebreaker, some Virginia senate Dems apparently decided to hop aboard the bandwagon. The political winds on masks are shifting.

One would assume that a duly enacted statute creating a parental opt-out on school masking would be the end of the matter legally, but I’m not so sure. Article VIII of the Virginia Constitution vests the power to supervise schools in local school boards. Those school boards must be legally accountable to some state authority, I would think, but there’s at least an argument that the legislature would need to pass a constitutional amendment, not a mere statute, to override the decision of a pro-mandate board. In fact, some school boards have pointed to Article VIII in their legal duel with Youngkin as a reason for why they shouldn’t have to obey his executive order.

On the other hand, my guess is that Democrats aren’t keen to see this battle continue. Petersen’s handing the party exactly the sort of off-ramp from restrictions that other Democrats like Phil Murphy in New Jersey have begun to take. The national party wants to blunt the GOP’s edge on its “back to normal” messaging before the midterms. A protracted court battle between the Republican Youngkin and masking-forever local Democrats is a bad look for Biden’s party. Especially since the takeaway for swing voters will be that Democrats need to be replaced at every level, not just in the governor’s office, to make restrictions go away.

Here’s Jen Psaki being pressed today on why Youngkin’s executive order is so bad if Murphy rolling back New Jersey’s state school mask mandate is fine. Read between the lines of her answer and she says the difference is that local school boards in Jersey can still impose their own mask mandates whereas Youngkin’s order would allow kids to go maskless no matter what the school board wants. In other words, Psaki’s admitting that mask mandates aren’t going away in blue states, nor should they. All that’s happening is that Democratic governors are washing their hands of the matter, handing the authority to local Democrats to force kids to mask up instead.

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