Supreme Court of Virginia punts on first school mask lawsuit

By Ned Oliver, Virginia Mercury – 2/7/2022

The Supreme Court of Virginia denied a petition Monday filed by parents in Chesapeake seeking to overturn Gov. Glenn Youngkin’s executive order ending mask mandates in public schools.

The ruling fell on procedural grounds, with the justices writing in a footnote that, “by this dismissal, we offer no opinion on the legality of EO 2 or any other issue pertaining to petitioners’ claims.”

Likewise, legal experts said the decision offered no obvious clues as to how the court might rule should one of several other pending lawsuits addressing Youngkin’s executive order make its way to the court.

“This is an extremely technical ruling,” said Carl Tobias, a professor at University of Richmond School of Law. “This is not a merits ruling.”

Instead, the justices wrote that their decision came down to the legal relief the group of parents sought, which is called a writ of mandamus — a mechanism in which a court directs a lower court or public official to perform a statutory duty.

The justices wrote that they could only issue such a writ in situations where a public official’s role is purely ministerial. And in the case of mask mandates in school, they wrote that a state law passed last year requiring school districts to adhere to CDC guidelines “to the maximum extent practicable” leaves school leaders with at least some discretion regarding how to act.

The line of reasoning would seem to poke holes in former Gov. Ralph Northam’s assertion that the law required mask mandates stay in place as long as they are recommended by the Centers for Disease Control and Prevention. It also appears to cut against Youngkin’s assertion that he has the authority to overrule local mandates via executive order.

Steve Emmert, an appellate lawyer in Virginia who writes about legal issues in the state, said it would be unwise to read too much into either line of reasoning given the broader context of the order.

The only hint he said he reads in the order about the court’s thinking on the issue has to do with process: that the court would be more likely to issue a ruling on the merits of the case in a lawsuit seeking injunctive relief, such as the lawsuit filed by seven school districts that have chosen to keep their mask mandates in place.

A lower court judge in Arlington ruled Friday that the districts may keep their mask mandates in place while the case advances. Attorney General Jason Miyares said he will appeal the ruling.

Emmert said that under judicial reforms passed last year, it would next go to the Virginia Court of Appeals. He said it could be as long as a month and a half until the appeal is heard.