Confusion, lawsuit follow Virginia governor's order on masks

School districts across Virginia are adopting an inconsistent patchwork of responses to an executive order from Republican Gov. Glenn Youngkin that aims to allow parents to opt-out of classroom mask mandates

Virginia Legislature

Virginia s new Republican governor was facing pushback from Democratic lawmakers, school districts and a group of parents who sued him Tuesday over an executive order that aims to create an opt-out for classroom mask mandates.

The order issued Saturday and set to take effect Monday was among Glenn Youngkin's first acts after he was sworn in as Virginia's 74th governor. The move both fulfilled a campaign pledge and inserted Youngkin, a political newcomer working with a divided legislature, into a divisive issue that’s generated controversy and legal challenges in other states around the country.

Youngkin’s order said the parents of any child in elementary or secondary schools or a school-based early childcare or educational program “may elect for their children not to be subject to any mask mandate.”

In part because of a state law passed last year on a bipartisan basis dealing with classrooms and pandemic policies, school districts in many of the state’s most populous localities have since told parents they planned to keep existing mask mandates in place, at least temporarily.

The 2021 law says each Virginia school board is required to offer in-person instruction that adheres “to the maximum extent practicable” to COVID-19 mitigation guidelines from the federal Centers for Disease Control and Prevention The CDC currently recommends universal masking by anyone 2 and older, regardless of vaccination status.

Many districts — from Charlottesville to Richmond to Arlington — cited that law in public statements notifying families that they had no plans to immediately change their masking rules. Others said they were reviewing the guidance or waiting for further clarity from the state, while at least two, King George County and Louisa County, announced plans to comply.

On Tuesday, a group of parents with children enrolled in Chesapeake Public Schools sued the governor and members of his administration in the Supreme Court of Virginia, arguing in part that the executive order was in violation of the state law.

The petitioners urged the justices to act quickly.

“Petitioners have no adequate remedy at law and no time to spare. They and their children are likely to suffer irreparable harm and damage if this Court declines to grant immediate relief,” they wrote.

A spokesperson for Youngkin did not immediately respond to a request for comment on the lawsuit or other questions from The Associated Press.

Youngkin, who is an advocate of vaccination efforts but campaigned against mask and vaccine mandates, recently said he would “use every resource within the governor’s authority” to ensure parents have the ability to choose whether their children wear masks. He also ended a vaccinate-or-test mandate for the state workforce through an executive order on Saturday.

Democrats accused him of overstepping his authority on the mask order, ignoring the state law and attempting to bully local school districts.

“I'm disappointed that, you know, right out of the gate we’re focused on culture wars rather than the goals of educating children,” said Democratic Del. Schuyler VanValkenburg, a public school teacher.

University of Richmond law professor Jack Preis said a parent or school district would have a strong argument that the order violates the state law.

“State law trumps an executive order, no doubt,” said Preis, who has taught courses on legislative and administrative law.

“If he wants to give parents the right to opt out of mask rules, he needs to change the statute, and that starts with the legislature,” Preis said.

But some Republicans have made the argument that the state law does not mandate masks. Among them was state Sen. Siobhan Dunnavant, a physician who played a key role in negotiating the bill, which also mandated in-person instruction. Dunnavant said this week that the law doesn't mandate masks because the CDC does not mandate masks — it only recommends them.

Youngkin's order says masks “inhibit the ability of children to communicate, delay language development, and impede the growth of emotional and social skills.”

The order also said many children are wearing “ineffective” cloth masks. U.S. health officials recently encouraged more Americans to wear the kind of N95 or KN95 masks used by health care workers to slow the spread of the coronavirus.

The Virginia chapter of the American Academy of Pediatrics weighed in on the issue, continuing to recommend that children wear a well-fitting face mask while attending school, regardless of vaccination status.

“Face masks remain safe and reliable, and children have demonstrated their ability to wear them effectively,” the group said in a statement.

Most states let schools decide their own mask policies, but several Republican-led states have moved to forbid mask requirements in public schools. Such bans remain in effect in states including Florida, Texas and Utah, while some others have been rejected by courts or face ongoing legal battles.

Debate over masks has intensified as schools struggle to contain the omicron variant, which has been blamed for forcing hundreds of schools across the U.S. to return to remote learning.

The highly contagious variant has also led some districts to reinstate mask policies that had previously been rolled back.

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Associated Press writers Sarah Brumfield in Silver Spring, Maryland; Denise Lavoie in Richmond, Virginia; and Collin Binkley in Boston contributed to this report.