School Mask Mandates in Virginia – What Richmond is Doing and the Arguments on Both Sides

The Richmond School Board, as well as other school districts all over Virginia, had mandated masks to be worn by students and staff in response to the COVID-19 pandemic. On Governor Glenn Youngkin’s inauguration day on January 15, the second executive order he signed stated that parents are allowed to decide whether their child will wear a mask. This makes all school mask mandates null. This would take effect on January 24.

On Tuesday, January 18, a group of 13 parents with children in Chesapeake City Public Schools filed a lawsuit against the executive order, stating that it goes against the state law that calls for each school board to implement guidance from the Centers for Disease Control and Prevention “to the maximum extent practicable.” They also state that local school boards and the General Assembly “share primary responsibility for public school education.” They asked for the courts to give a writ of mandamus to the governor, which is “an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.”

During that first week, from the 17th to 21st, Richmond, Henrico, and Chesterfield counties decided to uphold their mask mandates. In Richmond specifically, a City Hall briefing was held on Tuesday, January 18. Superintendent Jason Kamras restated that the decision to require masks in all school facilities will still stand, in defiance to the executive order.

Due to Governor Youngkin’s executive order, the Virginia Department of Health and Virginia Department of Education released new guidelines on Friday, January 21 to offer schools more guidance on how to align with the new policy.

On Sunday, January 23, the Richmond School Board held a closed session to discuss and vote on whether legal action should be taken. They voted 5-3 to take legal action and uphold their mask mandate. School board members were told not to share much about the session. The School boards for Alexandria, Arlington County, Fairfax County, Falls Church, Hampton, and Prince William County also signed onto the lawsuit. The school boards filed the lawsuit in Arlington Circuit Court on Jan. 24, the day Youngkin’s order went into effect.

On February 4, an Arlington Circuit Court judge temporarily blocked the executive order, agreeing with the seven school boards’ lawsuit. The lawsuit asked for an immediate injunction to halt the order and restore “the status quo for the 2021-22 school year, as it existed before EO2.” That motion was granted. This temporary restraining order prevents parents from sending their children to school without a mask in opposition to the district’s mask mandate policy.

On February 7, The Supreme Court of Virginia dismissed the lawsuit by the Chesapeake County parents. This dismissal does not impact the temporary injunction from the Arlington Circuit Court judge. It was dismissed for procedural reasons, with a writ of mandamus not applying for the case. This was decided without the court weighing on the lawfulness of the executive order itself.

The Arguments/Legislation on Both Sides

COVID-19 policies have pushed many boundaries on what can be mandated by institutions, and the back and forth of this issue showcases how difficult the issue is. The different concepts that are being utilized in this discussion are explored below:

Virginia Code § 1-240.1

The 2014 VA Code § 1-240.1 states that “A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.” This offers backing for those who support or align with the Governor’s executive order to maintain a parent’s discretion.

Virginia State Constitution – Article VIII, Section 7

The Virginia Constitution, Article VIII, Section 7 states that the “supervision of schools in each school division shall be vested in a school board, to be composed of members selected in the manner, for the term, possessing the qualifications, and to the number provided by law.” Contrary to the above Virginia Code, this statement fuels those who believe that the school boards have education as their priority, and as such their choice of mandating masks should be respected.

The Features of State Executive Orders

What features do Governor Youngkin’s executive order possess that are unique to it? While Executive orders can direct state government and other aspects of citizen life without going through the normal procedures, they are still limited by the state constitution and state law. However, this still offers little clarity, as while some can argue the executive order is against Article VIII Section 7 of the Constitution, VA Code § 1-240.1 also exists.

General Assembly Bill – SB 1303

Another commonly discussed law is Senate Bill 1303 that was passed during the General Assembly session last year, which states “The bill requires each school board to provide such in-person instruction in a manner in which it adheres, to the maximum extent practicable, to … reduce the transmission of COVID-19 that have been provided by the federal Centers for Disease Control and Prevention.” According to the CDC, they “recommend universal indoor masking by all students (ages 2 years and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status.” As such, one can argue that Governor Youngkin, by signing this executive order, is not allowing school boards to appropriately adhere to the CDC to its maximum extent.

CDC Guidelines – Recommendations or Mandates?

One more general difficulty in this issue is the nuance and legal difference between recommendations and mandates. While the CDC does push for universal indoor masking and vaccines, they only “recommend” such things, never mandating or requiring any action to be taken by anyone. As such, this may weaken the arguments that state the CDC guidelines require mask mandates from schools per se. This ambiguity in language is also pushed by those in support of the Governor’s executive order, stating that it is not aimed to be anti- or pro- masks, it is just to empower the parent.

Ultimately, this issue embodies the conflicting values of fighting for public safety to the maximum extent possible in institutions, and the need for individuals to maintain autonomy in their actions and not be required to behave according to outside authorities. It is also interesting to see how these larger ideals manifest into legal arguments, procedures, and disputes.

Citations

CDC. “Guidance for COVID-19 Prevention in K-12 Schools and ECE Programs.” Centers for Disease Control and Prevention, 13 Jan. 2022, https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html.

Legal Information Institute. “Mandamus.” Cornell Law School, https://www.law.cornell.edu/wex/mandamus. Accessed 18 Feb. 2022.

SB1303 – General Assembly 2021 Session. https://lis.virginia.gov/cgi-bin/legp604.exe?212+sum+SB1303. Accessed 18 Feb. 2022.

VA Code § 1-240.1 (2014)

Virginia Constitution, article VIII, section 7.

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