ARLINGTON, Va. (CN) — Attorneys for Virginia’s most populous school systems asked a state judge Wednesday to halt an executive order from newly minted Governor Glenn Youngkin allowing parents to opt out of mask mandates in schools.
The Republican governor's Jan. 15 order declared that “parents of any child enrolled in an 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.”
In response, seven school boards filed suit last week in Arlington County Circuit Court asking for a preliminary and permanent injunction to stop enforcement of Youngkin's order. The lawsuit described his action as “a clear violation of the school boards’ constitutional rights and responsibilities as well as to the entire structure for the supervision of public education in Virginia.”
At bottom, the case is about more than the discomfort of surgical masks. It is about gubernatorial power.
Representing the school boards, attorney John F. Cafferky with Blankingship & Keith argued during Wednesday's hearing that local school boards, not the governor, supervise schools. He said the Virginia Constitution specifically vests school boards with this responsibility. State law enacted by the Virginia General Assembly also provides that boards should keep schools open by using Covid-19 mitigation strategies recommended by the U.S. Centers for Disease Control and Prevention.
"For the school systems and their students," Cafferky explained, "universal masking is an important strategy."
He characterized Youngkin's insistence upon letting parents decide whether their children should wear masks as philosophical and said the governor has overstepped his authority.
But Deputy Attorney General Steven G. Popps fired back, saying Youngkin isn't the one disobeying the law. Rather, he said, the school boards are defying the governor's lawful order by continuing to require masks.
Under the Virginia Emergency Services and Disaster Law, former Governor Ralph Northam used his authority to impose unprecedented restrictions as hospitals filled with victims of the coronavirus. Popps argued that Youngkin invoked those same powers – which he described as "vast and broad" – conferred upon him by the statute.
Following the two-hour hearing, Arlington Circuit Court Judge Louise M. DiMatteo took the matter under advisement and said she would rule soon, but did not specify when.
Most of the school boards involved in the lawsuit represent populous northern Virginia, including Alexandria, Arlington County, Fairfax County, Falls Church and Prince William County. The remaining two boards are from Richmond and Hampton.
Fairfax County, the state’s largest school system, immediately announced that it would continue to require masks after Youngkin issued his order.
Parents of students with disabilities filed a similar lawsuit in the U.S. District Court for Western District of Virginia, noting that children with disabilities are at increased risk of illness and death if they catch the virus. Another lawsuit was filed by parents in Chesapeake.
Days after he signed the order, Youngkin issued a statement urging parents to “listen to their principal, and trust the legal process.”
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