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School boards sue Virginia’s Youngkin over order to make masks optional

Seven school boards say that state law imbues them and not their new Republican governor with the authority to set school mask policies.

ARLINGTON, Va. (CN) — Seven Virginia school boards took the state's newly elected Republican Governor Glenn Youngkin to court on Monday, saying his recent order to make masks optional puts the state's education system at risk and tramples Virginia law.

Led by Fairfax County, the boards filed suit just as Youngkin's executive order was set to go into effect. Together with Alexandria County, Arlington County, Falls Church City, Hampden City, Prince William County and Richmond City, the challengers serve 350,000 students and 50,000 teachers in the Virginia school system. Represented by attorneys at Blankingship & Keith in Fairfax, the boards brought their suit in Arlington Circuit Court.

They say Youngkin's executive order "is a clear violation of the School Board's constitutional rights and responsibilities as well as the entire structure of the supervision of public education in Virginia."

In addition to noting the Virginia Constitution vests authority over school policy in school boards, not the governor, they say Youngkin is contravening a state law requiring schools to follow federal guidelines from the Centers for Disease Control and Prevention. The CDC recommends masks regardless of vaccination in schools serving children in kindergarten through 12th grade.

Reacting to the lawsuit Monday, Macaulay Porter, the governor's spokesperson, said Youngkin is standing up for parents.

"The governor and attorney general are in coordination and are committed to aggressively defending parents' fundamental right to make decisions with regard to their child’s upbringing, education and care, as the legal process plays out," Porter said in an email.

Youngkin's order, known as Executive Order 2 or EO2, would allow parents to exempt their children from any in-school mask mandates without having to provide a reason. It was one of 10 executive actions the governor took earlier this month during his first week in office.

"The provisions of EO2 that are applicable to local School Boards have nonetheless created a situation in which the School Boards face the real and imminent threat of having COVID-19 outbreaks occur at multiple schools, endangering the health of students and staff, and causing those schools at least temporarily to be shut down," the suit states.

Virginia's school systems went online in March 2020, but the boards note that they have been able to resume in-person instruction thanks to Covid-19 safety measures, including mask mandates.

Additional points that the boards underscore is that many students are not old enough to be eligible for vaccination, while there are also staff and students throughout the state who are particularly susceptible to infection and health complications if masks were to become optional but cannot get the vaccine because they have compromised immune systems or medical conditions.

If they stop following CDC guidelines, the boards claim as well, they face the threat of losing federal dollars provided by the American Rescue Plan as well as insurance coverage.

Youngkin, meanwhile, has threatened to use executive power to punish school boards at the state level if they refuse to comply with his order.

“We will use every resource within the governor's authority to explore everything we can do and will do to make sure that parents' rights are protected," Youngkin told a WTOP reporter earlier this month.

While several Virginia school systems, including six involved in the lawsuit, have said they continue to require students and staff to wear masks in school, others have made masks optional in the wake of Youngkin's order.

Falls Church, one of the school systems involved in the lawsuit against Youngkin, is keeping mask requirements in place until Feb. 14, at which point it plans to provide an option for students and staff to opt-out of the mask mandate.

Youngkin has stood firm in support of his executive order, framing it as a matter of parents' rights, rather than a matter of what political entities have the power to pass policy governing schools.

“I have said all along that we are going to stand up for parents," Youngkin said in a statement last week. "Executive Order 2 is not about pro-masks versus anti-mask, it’s about empowering parents. I am confident that the Virginia Supreme Court will rule in the favor of parents."

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