Virginia Supreme Court and Senate Step In to Uphold Governor Youngkin’s School Masking Executive Order
In a previous post, I wrote about Governor Youngkin’s day one Executive Order which gave parents the choice to opt-out of a public school district’s mask mandate for students. This week, both the Virginia Supreme Court and the State Legislature stepped in to ensure parents have a say when it comes to masking. In an unpublished opinion, the Supreme Court tossed out a case filed by a group of Chesapeake City Public School parents. While declining to rule on the merits of the case, the Court found that the relief sought by the plaintiffs was inappropriate as they could not show that the Governor failed to fulfill a “clear and unequivocal duty.”
The Democrat-controlled Virginia Senate also responded this week by passing SB 739, a bill that would codify the Governor’s Executive Order in statute. Republican State Senator Siobhan Dunnavant, a practicing physician herself, was the original sponsor of SB 1303 that passed the General Assembly in special session last year. That bill required public schools to provide in-person learning which “adheres, to the maximum extent practicable, to any currently applicable mitigation strategies for…elementary and secondary schools to reduce the transmission of COVID-19 that have been provided by the federal Centers for Disease Control and Prevention.” Since masking among children is a CDC guideline, SB 1303 was frequently cited by public school districts as requiring them to enforce mask mandates. In response, Senator Dunnavant partnered with Democrat Senator Chap Petersen to pass SB 739 through the chamber this week, which removes all language relating to CDC guidelines and explicitly states that parents “may elect for [their] child to not wear a mask while on school property.” The bill now crosses over to the House of Delegates for consideration.
Governor Youngkin released a statement after the Senate’s action, saying “In the last week, we have seen Democrat-led states like Oregon, Connecticut, New Jersey, and Delaware move away from universal mask mandates in schools. I am pleased that there is bipartisan support for doing the same in Virginia.” Excluding the four states just mentioned which are planning to drop their mask mandate for schools, only ten states and the District of Columbia continue to require, or allow local school districts to require, masks for K-12 students. Those states include California, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Nevada, New Mexico, New York and Washington.
Despite the clear movement away from mask requirements in K-12 schools around the country, precipitated by a nearly 70% drop in average new daily COVID-19 cases over the past month, the federal government is continuing to defend the recommendations. White House Press Secretary Jen Psaki told reporters this week “We recommend masking in schools. That is the recommendation from the CDC. It is also true that at some point when the science and the data warrants, of course, our hope is that is no longer the recommendation.”
Governor Youngkin’s approach was to make parents the decision-makers, not the CDC or local school districts. In fact, his Executive Order does not require school districts to end their mask mandates, but instead requires that they respect a parent who makes the choice to opt their child out of wearing a mask. The Virginia Senate showed this week that pro-parent policies can and should be bipartisan, providing a roadmap for other states to follow.