Seven school boards sue to stop Gov. Youngkin’s mask-optional order on the day it takes effect
By Hannah Natanson and Nicole Asbury, The Washington Post – 1/25/2022
Monday was a day of discord for Virginia schools as seven school boards sued to stop the mask-optional order by Gov. Glenn Youngkin (R) on the day it took effect. At the same time, some parents brought maskless children to school and picketed outside when administrators isolated unmasked students from their peers.
The school boards — led by the board for Fairfax County Public Schools, the largest, most prominent district in the state — argue that Youngkin’s order violates the Virginia Constitution. Their lawsuit, filed Monday morning in Arlington Circuit Court, asks for an immediate injunction barring enforcement of the order, which seeks to leave masking decisions to parents, contravening federal health guidance and the masking mandates that most Virginia school districts have maintained throughout the coronavirus pandemic.
It is the second lawsuit the governor has faced over his mask-optional order since he announced it in mid-January on his first day in office. In its brief existence, according to a Washington Post tally, the order has also drawn promises of defiance from more than 50 of Virginia’s roughly 130 school districts, whose boards voted at meetings — or whose superintendents announced in statements — that they intended to keep requiring face coverings for students. By contrast, boards in more rural and conservative areas swiftly adopted mask-optional policies in obedience to Youngkin’s order.
The battle puts Virginia at the center of a turbulent national debate over masking in schools that has pitted Republican governors against school systems, and the White House against Republican governors, in states including Iowa, Oklahoma and Tennessee. Last week, Arizona Gov. Doug Ducey (R) sued the Biden administration over its demand that the state stop sending coronavirus relief money to school districts that lack mask mandates — and President Biden’s Education Department is pursuing civil rights investigations into five states for banning mask requirements in schools.
But the turmoil in Virginia is commanding special attention, coming as it does after Youngkin gained office in a tight, two-point victory that experts say hinged on his ability to mine a national vein of parent grievance over pandemic-era schooling and curricular issues. How Youngkin — a former business executive who began his term with a flurry of executive orders focused on education — performs in office is seen as a key test of whether Republicans can continue leaning in to educational issues to mobilize and satisfy their base.
In the school boards’ lawsuit, their lawyers write that Youngkin’s executive order goes against Article 8, Section 7 of Virginia’s Constitution, which asserts that “the supervision of schools in each school division shall be vested in a school board.” The lawyers also say the order contradicts a state law passed last year that requires Virginia school districts to follow federal health guidelines to the “maximum extent practicable.” The Centers for Disease Control and Prevention recommends masking inside K-12 schools for everyone over age 2, regardless of vaccination status.
The school boards joining Fairfax’s suit include those for Alexandria City Public Schools, Arlington Public Schools, Falls Church City Public Schools, Hampton City Schools, Prince William County Public Schools and Richmond Public Schools, all of which currently require masks. The seven boards said in a statement Monday that “school divisions need to continue to preserve their authority to protect and serve all students, including our most vulnerable,” so they can keep attending school in person.
“Without today’s action, school boards are placed in a legally untenable position,” the school boards said in the statement. “Today’s action is not politically motivated … the lawsuit is not brought out of choice but out of necessity.”
Youngkin spokeswoman Macaulay Porter said in a statement Monday morning that “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 added, “We are disappointed that these school boards are ignoring parent’s rights.”
‘Donuts for the Defiant’
In many Virginia classrooms Monday, things played out calmly, with students sitting down for their lessons either masked or mask-free depending on which policy their school district had adopted and how their parents felt about the matter. Spokespeople for the school systems in Richmond and Arlington, for example, said they saw no parent demonstrations and no teachers walking out of school to protest masking requirements, as social media rumors had suggested would happen.
Arlington spokesman Frank Bellavia said he received a handful of anecdotal reports of students refusing to mask at school, causing officials to send home “a very small number” of children with take-home assignments. Alesandra Bakaj, a high school teacher in the district of 23,000, said her day was exceedingly normal.
“The same kids had their noses out [of masks] and were pushing the envelope, but nobody was taking some sort of major stand,” she said. “My students were respectful, they were great, I have no complaints.”
But in some places, messier scenes developed, with parents showing up to school maskless and determined to send their children into class without masks, too. In response, administrators sent children into confined rooms or asked that parents come pick them up.
A particular hot spot was Loudoun County, a wealthy and politically divided district that has been in the national spotlight for more than a year because of its persistent educational culture wars. The battles have spanned issues including critical race theory, sexually explicit texts and the rights of transgender students, and on Monday settled firmly around the mask debate.
Youngkin frequently referenced Loudoun County on the campaign trail, and he announced an investigation of the school district’s bungled handling of two sexual assault cases on the same day he debuted his mask-optional order. Early Monday morning, in an interview with conservative radio host Hugh Hewitt, Youngkin took the opportunity to criticize Loudoun yet again.
“They do not respect parents,” he said of the school district of 81,000 students, invoking a crusade for parents’ rights in education that was key to his election and has become a conservative rallying cry nationwide.
Elicia Brand, a Loudoun County parent and co-founder of the advocacy group Army of Parents, said Monday that anti-mask parent activity was planned for 31 campuses in her school district. Loudoun schools spokesman Wayde Byard said the district saw parent demonstrations outside at least one high school and a middle school in Purcellville, where parents handed out doughnuts to students walking to school if the students promised not to wear masks. Parent Heather West, who participated, said this event was called “Donuts for the Defiant.”
Close to 9:30 a.m. outside Loudoun’s Woodgrove High School, a group of parents circled about 20 students who were preparing to walk into the building without masks. As the students went through the front door just in time for the first bell, the parents began yelling, “Free your faces!”
Once inside, some students informed their parents via phone that they were being placed in an auditorium, away from other students. Clint Thomas, one of the parents, pressed the intercom button at the school’s front doors repeatedly to demand a meeting with the principal, William Shipp. About 15 minutes later, Shipp walked outside, removing his mask as he did so.
He told the group that an assistant principal was watching over maskless students in the auditorium, where they would remain all day or until they put masks back on. He said that the students had access to a restroom and that they would eat lunch by themselves, earlier than the rest of the masked student body.
Byard, the system spokesman, said Loudoun officials sent 30 maskless children into isolation in the auditorium at Woodgrove, in addition to isolating about 30 students across at least three other campuses throughout the county. He said officials offered these students instruction through the online platform Schoology, with teachers visiting them to offer help as needed. He said any students who opted to go home were allowed to do so.
‘We’re not going to have masks forever’
In their suit, the school boards assert that Youngkin’s mask-optional order threatens to destroy a so-far successful year of in-person learning by creating a high risk of outbreaks.
They are asking the court to declare Youngkin’s mask-optional order “invalid” and “void” according to state law. They are further requesting that the court enjoin the governor from taking any actions to enforce his order, including “withholding any funding, service, or other resource from any or all of the School Boards.”
Youngkin has said he will use every resource at his disposal to enforce his order, and his spokeswoman did not rule out yanking funding from disobedient districts. The governor tweeted over the weekend that parents should listen to their school principals while his order faces challenges in court.
The seven school boards are also requesting that the court award them “costs and fees expended in connection with this action” as well as any extra relief deemed appropriate.
Fairfax School Board Chair Stella Pekarsky said in an interview Sunday that the lawsuit boils down to an issue of local control: “Can we make policies for our school system, or does the governor get to come and do that for us?”
Youngkin, Pekarsky added, “does not tell us what to do.”
Stephen Farnsworth, a political science professor at the University of Mary Washington, said the twin lawsuits place significant pressure on Virginia’s court system to step in quickly to resolve the debate.
“In situations like this, where there is no middle ground and where neither side has any interest in backing down, only judges can be the necessary umpires,” Farnsworth said. “The sooner they do so, the better for all concerned.”
But nobody knows when that will happen.
Youngkin told radio host Hewitt on Monday that “the legal process is going to take a little bit of time,” although he has asked to speed things up. The parent lawsuit, filed in Chesapeake before the Virginia Supreme Court last week, alleges that the governor’s executive order violates state law and the constitution, for the same reasons the school boards’ suit lists.
Christine Thompson, one of the Chesapeake plaintiffs, said she and like-minded parents originally planned to sue only their school board — which was leaning toward making masks optional even before Youngkin’s executive order, she said. But when Youngkin signed his mask-optional order on Jan. 15, they decided to target the governor himself in the state Supreme Court, hoping for a quick resolution.
“This was not political,” Thompson said. “This is all about keeping our families safe.”
Steven Emmert, a partner at Sykes, Bourdon, Ahern & Levy who analyzes appellate decisions in Virginia, said the Chesapeake plaintiffs “have a very plausible claim” that Youngkin’s order violates the state law requiring compliance with federal guidelines. But he said there is a strong possibility the court decides that suit without addressing issues of constitutionality, as is its typical preference.
That would allow the school boards’ suit to proceed in Arlington court, although Emmert said he is unsure whether a county circuit court could issue a statewide injunction.
Pekarsky of the Fairfax board said that masking, combined with other precautions, has kept students learning safely in person throughout this academic year. She said the district has not once been forced to shut down a school because of high transmission of coronavirus cases.
Youngkin’s predecessor, Ralph Northam (D), issued a public health order last summer requiring masking inside schools — which bears superficial similarity, Pekarsky acknowledged, to Youngkin’s attempt to tell school districts what to do about masking.
But Pekarsky said Northam’s order was acceptable because it did not go against what Fairfax had already decided to do — require masks — or against federal health guidance or Virginia state law.
Northam’s mask mandate “was in accordance with what we needed to do to keep our students safe,” she said.
Pekarsky said her message to parents who do not want to mask their children at school is to have patience. She said that Fairfax wants to find an “off-ramp for masks” but that the board is unwilling to jeopardize student and staff safety.
State Sen. Chap Petersen (D-Fairfax City) also called for a mask “off ramp” in a message to constituents Monday, although he said he views Youngkin’s order as unconstitutional and does not support it.
“All I’m saying is — and I don’t see how anyone can disagree with this — we’re not going to have masks forever,” Petersen said in an interview.
‘A political divide’
Drastically different emotions and experiences unspooled in Loudoun over the course of the day Monday, reflecting deep divisions both in pandemic-era Virginia and in the nation.
In one part of the county, 10-year-old Noah Rafalski began the day by asking a friend to walk into Banneker Elementary beside him. Both were maskless and thought walking together would boost their courage.
Once inside, Rafalski, a fifth-grader, was pulled aside by the principal and left mostly alone in a room for about an hour, he said. Adults told him he could go to class if he put on a mask, but he decided to stay put.
“I was trying to hope,” Noah said. “But I just got fed up.”
Eventually his mom, Megan Rafalski, came to pick him up early.
Elsewhere in Loudoun, parent Jeanne Meyer began the day by sending a warning message to her daughter’s school administrators: “My child is authorized for early dismissal … today if she feels there is too large a population of maskless fellow students.”
But as the day stretched on, the 17-year-old never called to request a pickup. And after arriving home, the teen said all the other students stayed masked. Meyer was thrilled.
“I do understand other parts of the county might have had different experiences,” she said. “There is a little bit of a political divide.”
Rachel Weiner and Laura Vozzella contributed to this report.