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Virginia Supreme Court turns away challenge to mask-optional order for schools

The dismissal does not impact a ruling handed down last week blocking the Republican governor’s executive order that lets parents choose whether their children wear masks at school.

RICHMOND, Va. (CN) — The Supreme Court of Virginia dismissed a fight over Governor Glenn Youngkin’s school mask opt-out order Monday afternoon. 

The brief opinion, signed by a clerk of the state’s highest court, sided with the Republican governor on procedural issues but specifically noted the order did not address the legal questions at hand.

The dismissal does not impact a temporary restraining order issued Friday by Arlington Circuit Court Judge Louise M. DiMatteo that blocked enforcement of Youngkin's executive order against a handful of school boards. As soon as he took office in late January, Youngkin signed the order empowering parents to decide whether their children should wear masks in school.

In a case separate from the one brought by school boards, a handful of parents from Chesapeake filed a writ of mandamus, a request straight to the state’s highest court, asking the justices to intervene. They argued the state’s constitution makes school boards the chief arbiters of determining how to manage students. The parents also cited a state law passed during the coronavirus pandemic which empowered school boards to follow federal health guidelines to the “maximum extent practicable.” 

At the time of filing, Chesapeake-area attorney Kevin Martingayle, who is representing the parents, told Courthouse News the expedited request was meant to speed up an eventual appeal of whatever a lower court ruled. 

But the high court said Monday such a rushed step was inappropriate. 

“The sole potential duty either petition suggests places an affirmative obligation on Governor Youngkin is his constitutional responsibility to ‘take care that the laws be faithfully executed,’” wrote Court Clerk Muriel-Theresa Pitney. “However, executing the laws is ‘an executive function, requiring in its performance the exercise of . . . discretion,’ that cannot be directed by mandamus.”

Though the court did not rule on the authority issue at the heart of the dispute, it did note the power school boards have under existing law.

“By allowing school boards to follow the Centers for Disease Control and Prevention’s recommended Covid-19 mitigation strategies ‘to the maximum extent practicable,’ necessarily gives the boards a degree of discretion to modify or even forgo those strategies as they deem appropriate for their individual circumstances,” the order states. “With respect to implementing policies on student masking, that discretion persists even if [Executive Order] 2’s masking exemption provisions are unlawful.” 

A footnote at the end of the order makes clear the justices "offer no opinion on the legality of EO 2 or any other issue pertaining to petitioners’ claims.”

In a statement following the order's release, Republican Attorney General Jason Miyares praised the decision. 

“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,” he said. “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.”

For his part, Martingayle said in an email Monday afternoon that the order did little to deter him and his clients from continuing to challenge Youngkin’s authority. 

“This is far from over,” he said. 

The mask opt-out order is currently blocked in a handful of the state’s most populous districts thanks to DiMatteo's ruling late Friday.

"The single issue before the court is whether the governor, via his emergency powers, can override the decisions of local school boards delegated to them under SB 1303," the judge wrote. "On this pivotal point, the court concludes the governor cannot."

It does not follow, she added, that the governor, "even in an emergency, can direct the school boards to ignore the General Assembly's deference to CDC guidance and to abandon their considered determination about what is practicable regarding those mitigation strategies."

Youngkin and Miyares both promised to appeal Friday’s ruling.

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