Supreme Court dismisses mask lawsuit

Published 1:03 pm Tuesday, February 8, 2022

Lower court had paused Youngkin order

Virginia’s Supreme Court dismissed a lawsuit by 13 Chesapeake parents on Feb. 7, which had sought to overturn Gov. Glenn Youngkin’s executive order making masks in K-12 schools optional.

The seven justices’ unanimous decision comes on the heels of two other legal challenges to the order, and in the wake of widespread defiance among local school boards — including Franklin’s and Southampton County’s — that have opted to continue enforcing their mask mandates.

On Feb. 4, an Arlington County Circuit Court found in favor of seven school boards that had contested Youngkin’s authority to use his executive powers to rescind the universal K-12 mask mandate issued last August in the wake of a surge in COVID-19 cases fueled by the highly contagious delta variant. The school boards of Arlington, Fairfax and Prince William counties had joined with those of the cities of Alexandria, Richmond, Falls Church and Hampton in bringing the lawsuit.

Youngkin, a Republican, issued Executive Order No. 2 on Jan. 15 — his first day in office. It took effect Jan. 24.

The 13 Chesapeake parents, and the seven school boards, had each argued Youngkin’s order conflicts with a 2021 state law — Senate Bill 1303 — which requires public schools to provide in-person instruction in a manner that, “to the maximum extent practicable,” adheres to CDC guidance. The CDC still recommends universal masking by all students ages 2 and older, teachers and visitors regardless of vaccination status.

“The single issue before the Court is whether the Governor, via his emergency powers, can override the decision of local school boards delegated to them under SB 1303,” wrote Arlington Judge Louise M. DiMatteo. “On this pivotal point, the Court concludes that the Governor cannot.”

But the state Supreme Court took a different view on the matter.

Their ruling offers “no opinion on the legality” of Youngkin’s executive order, but contends the “maximum extent practicable” language in SB 1303 gives school boards discretion “to modify or even forgo” CDC-recommended strategies “as they deem appropriate for their individual circumstances.”

“With respect to implementing policies on student masking, that discretion persists even if EO 2’s masking exemption provisions are unlawful,” the justices write.

Isle of Wight’s School Board had voted 4-1 on Jan. 20 to continue requiring all students, staff and visitors to stay masked. Surry’s School Board voted unanimously on Jan. 27 to do the same. That same week, the 13 Chesapeake parents had asked in their lawsuit that the Supreme Court declare Youngkin’s order “void and unenforceable.”

A third lawsuit filed last week by 11 parents whose children have disabilities is pending in federal court, in Virginia’s Western District. The suit alleges Youngkin’s order “strips schools of their ability to comply with their obligations to students with disabilities under the Americans with Disabilities Act and Rehabilitation Act.”

“Today, the Supreme Court of Virginia rejected a challenge out of the City of Chesapeake to Governor Youngkin’s Executive Order Number 2,” said Virginia Attorney General Jason Miyares in a prepared statement released Feb. 7. “The Governor and I are pleased with today’s ruling. At the beginning of this pandemic, Governor Northam used his broad emergency powers to close places of worship, private businesses, and schools and impose a statewide mask mandate. Nearly two years later, we have better risk mitigation strategies and vaccines, and we know much more about the efficacy of requiring children to wear masks all day. We agree with the Court’s decision and will continue to defend the Executive Order. This is a victory for Virginia families.”

Youngkin spokesman Macaulay Porter said the governor plans to appeal the Arlington Circuit Court ruling.

When news of the Arlington court’s ruling broke Friday afternoon, House of Delegates  Minority Leader Eileen Filler-Corn (D-Fairfax) had issued a prepared statement calling the court’s upholding of mask mandates “a victory for our children, the health and safety of our communities, and all of us who believe public health policy should be driven by science not politics.”

“Today’s court decision has no bearing on the decision that came down Friday in favor of local school boards against Governor Youngkin’s unconstitutional executive order,” Filler-Corn added on Monday. “My statement on last Friday’s court decision still stands.”

Youngkin’s order making masks optional had referred to the nationally dominant omicron variant as “less severe” than delta, a statement with which the CDC’s morbidity and mortality weekly report now agrees. However, the number of children hospitalized with COVID-19 nationwide was still well above the peak of last year’s delta wave, according to CDC data for the week ending Jan. 29 — though the number has fallen sharply from the record-breaking pediatric hospitalizations seen the first week of January. CDC hospitalization data for the week ending Feb. 5 was unavailable by press deadline.