Constitutional Law, Politics

A New Fight in the Old Dominion: Youngkin and the School Districts Set for Face Off on Masks

There is a new fight brewing in the Old Dominion over mandates.  Like other parents in Fairfax, we were informed this weekend by the School District that it will not be complying with the order of Virginia Governor Glenn Youngkin to lift all mask mandates for schools. The school districts are relying on a bill, Senate Bill 1303, that was approved and signed into law last year. However, the bill does not mandate masks per se and this issue will quickly move to the courts for a face off on masks. Youngkin, however, may be stymied by a single line inserted by Democrats into a state law last year.

In the email, Scott S. Brabrand, Superintendent of the Fairfax County Public Schools, said that the order would not be followed as the county continues to “review” the order. That appears more of a litigation than compliance review because the order is short and quite clear.

Governor Youngkin’s executive order states, in part,

The parents of any child enrolled in a [sic] elementary or secondary school or a school based early childcare and educational program may elect for their children not to be subject to any mask mandate in effect at the child’s school or educational program.

Technically, Virginia is not barring the wearing of masks but simply allowing parents to make the choice rather than the schools for their children.

The schools are relying on Senate Bill 1303 which states school districts should

“provide such in-person instruction in a manner in which it adheres, to the maximum extent practicable, to any currently applicable mitigation strategies for early childhood care and education programs and elementary and secondary schools to reduce the transmission of COVID-19 that have been provided by the federal Centers for Disease Control and Prevention.”

The law itself, however, does not require masking and the question is whether the districts can ignore the state guidance over the federal guidance on such questions. They probably can.

Youngkin’s order expressly rescinded Executive Order 79 by his predecessor, Governor Ralph Northam, and was issued pursuant to his authority under Article V of the Constitution of Virginia and § 44-146.17 of the Code of Virginia. He also exercises such powers through the authority vested in the State Health Commissioner.

The school districts are effectively stating that they will follow federal, not state, authorities in how to address such health concerns. The Biden Administration previously called on teachers in Florida to defy state directives and President Biden even pledged to pay their salaries if they did so.  White House Press Secretary Jen Psaki (herself an Arlington parent) has already applauded the refusal of the school districts to follow the order.

This will create a difficult court challenge for the districts. These school officials could find themselves with two fronts to fight. First, they must argue that the state law allows them full discretion to refuse to follow the direction of state health officials and the governor in favor of the CDC.

Second, they must argue that these masks are important to reducing the spread of Covid-19 and, specifically, the omicron variant (which is now virtually all of the cases in many states). The problem is that the thin paper masks and cloth masks commonly worn by students are viewed as largely ineffective for such protection. Not only do the masks not appear to block these variants, even CNN’s experts are calling the cloth masks “little more than facial decorations.”

The school districts are not arguing for N95 masks for children but for these same discredited paper and cloth masks as a public health imperative.

The expected litigation is particularly notable in the wake of the Supreme Court’s rejection of the OSHA mandate for workplaces. The justices  ruled that “major questions” like a vaccine mandate should be resolved through the legislative process.  As stressed by Justice Neil Gorsuch in his concurrence: it is a matter of “who decides.”

Unlike President Biden who tried to use a “workaround” for his lack of direct authority to order a vaccine mandate, Governor Youngkin has such inherent constitutional authority. Public health is an issue left largely to the states and he is the chief executive of Virginia. There is some irony that the same politicians who heralded Biden’s use of executive power to unilaterally order such mandates are now crying foul in the use of that authority by Governor Youngkin. The difference, again, is that Youngkin has inherent authority under the state constitution — absent a countervailing state law.

It is impossible to ignore that these districts are in areas like Alexandria and Arlington where Youngkin did the worst in the last election. He ran on his intention to issue this order. He also ran against some of these same school boards and districts over controversies ranging from masks to assignments on racial divisions and privilege. They are now saying that, despite the election, they can follow the Biden administration rather than the Youngkin administration.

A court would ordinarily make fast work of such defiance of state health directives. However, the districts do have a state law that gives them a good-faith basis to go to court. While it is true that the voters elected Youngkin after a campaign seeking this and other changes, the bill was also the result of the democratic legislative process. It is the law of the state. Indeed, it was passed on a bipartisan basis. It was introduced by State Senator Siobhan Dunnavant (R-Henrico)  and was passed 36 to 3.

There also could be litigation from parents in other counties following Youngkin’s order. Some counties have voted to make masks optional. Parents could challenge that decision as violating the state law by ignoring the CDC recommendation.

It will be interesting to see if the Biden Administration seeks to intervene as a “friend of the court” in such litigation. However, it will be defending a policy that allows the wearing of cloth masks, which have been found to be ineffective. Indeed, while social media companies were banning (and the media was attacking) anyone who questioned the value of such masks, there were studies showing that most masks were not offering substantial protection, including the 2020 Duke University study.

Yet, the CDC is still recommending “universal indoor masking by all students (ages 2 years and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status.”

It is doubtful that the schools want to require N95 or K95 masks (which also have to be discarded or cleaned to remain effective over time). That leaves the courts with a dilemma of not just what the law states but what the science states on this issue.

Nevertheless, the state provision was a lethal addition for those who wanted to limit the authority of the state to reach its own decisions on public health. Democratic Delegate Schuyler VanValkenburg (and a public high school teacher) said that he pushed for the language in the final version of the bill that was approved by the General Assembly. Republicans apparently did not notice or understand the implications of the additional language. Notably, Attorney General-elect Jason Miyares co-sponsored the bill. While some have noted that “portions of that bill may have been snuck in at the last minute,” they still made it into the bill and it is now the law of the state.

The one line in the bill curtailed the inherent authority of the states in our federalism system by affirmatively yielding to federal authorities on a requirement governing the schools.  There is an expiration date of Aug. 1, 2022, so the conflict could be addressed through legislative rather than judicial action.  A court may view that approaching date as a reason to defer to the legislature on such a politically charged question.

As a result, the school districts and the CDC may be able to prevail in preventing Youngkin from carrying out his pledge from the campaign. They could also prevail in requiring the use of masks, including those denounced as largely “facial decorations.” That legislative face plant is why you need to read every line of a bill.

62 thoughts on “A New Fight in the Old Dominion: Youngkin and the School Districts Set for Face Off on Masks”

  1. @Sammy, who is they?

    Do you even understand the opposition to mandates?
    Do you even understand that many of the ‘preventive’ measures don’t work?

    Best way to avoid COVID… stay at home, indoors and upgrade your HVAC … keeping your fan always running. Use grocery delivery services.

    Masks are for the most part a joke. N95 or P100? Sure. But good luck buying the N95 or KN95 in bulk, since they are disposable.
    P100? You need to have a good supply of cartridges and good luck trying to talk w one on.

    -G

  2. @Young…

    Sorry but even in sarcasm … that’s a bad joke.
    Read the ruling.

    And its morbidly obese are more likely to die from COVID anyone can get and pass it along…
    -G

  3. Turley focused on the law, but not the science.

    First, the issue of what masks are effective… N95 best. KN95 almost as good. (Its a difference in certification.) Both masks come from China. (3M makes their N95 masks in China)

    The other masks are not effective against Omicron.
    Now someone quoted a 3M N95 or KN95 mask sells for about $3.00. These are disposable. So you need to have a steady supply of these masks if you’re following the latest CDC guidelines. If you over wear… you risk bacterial respiratory infections.

    To make matters worse… they are not sized for kids faces. They are sized for an adult face and even still must be adjusted for a good fit.

    That’s the masks… now try speaking with an N-95 mask. Not easy.

    Alternatives? P100. They offer best protection for the wearer, however… the exhaust ports are not filtered. So you exhale… if you have COVID, you’re potentially spreading it. Again, try talking with it on.

    Now you can get a respirator (full face) that has a built in mic… but the ones that I’ve seen for industrial use are expensive.
    Schools could have bought the masks for teachers, then let the teachers buy their own extra filters so that they could take these masks home and wear them all the time.

    But lets talk about the effectiveness of masking…
    You go out to a restaurant or bar… you risk getting exposed.
    Go into a store, even masked w paper mask… depending on airflow and air quality… you increase your risk of COVID.

    That’s the other thing. Higher CFA (airflow) in the HVAC can also help reduce COVID. (Assuming HEPA filters are part of the HVAC system. )

    But no, these schools are playing politics.
    The masks they mandate do nothing.
    The teachers willfully go out and get exposed elsewhere.

    Studies have shown kids to be a poor vector of other covid strains and that constant testing found little or no evidence of exposure from kids.

    These people who force useless masks should be smacked multiple times with a clue by four … but more than likely it won’t help.

    -Gumby

  4. @Anon:
    “He’s ‘not’ an Anti-Vaxxer, of course. But Justice Alito questions if Covid protocols in the workplace really fall under OSHA’s jurisdiction. As though infected employees are ‘not’ a threat to co-workers.”
    -=-

    I wonder if you’re being intentionally a tad slow, or if this comes natural.

    Take a teacher who’s afraid of getting COVID.
    Now that teacher gets COVID… was it from her student, or her time w her friends out drinking?

    What you apparently missed was that COVID is not a workplace only threat. You can get COVID anywhere. Thus its not under OSHA’s purview.

    The vaccines are not without risk. You have to assess your individual risks and those from the vaccine.

    When you look at factors which make the virus deadly… age, sex, weight, health issues… vs the issue of potentially getting myocarditis …
    that’s your choice. Or if you’ve had a confirmed case of COVID the risks of hospitalization or death vs the risk of the vaccine.

    Lets face it. You’re either vaccinated, or not … and you’ve either had COVID, or will get it… or may get it a second time.

    The vaccines work. They reduce symptoms and risk of death.

    -Gumby

    1. Interesting comment and it raised an odd thought: Can OSHA ban fat people from workplaces since they are far more likely to suffer from COVID than a slim unvaccinated person?

      And if the vaccination is really worth a s**t, why are vaccinated afraid of unvaccinated? That one kind of answers itself.

  5. Justice Alito Had Two Shots And A Booster, But Is Leery Of Mandates

    Justice Alito suggested that the vaccine policy was more onerous than other OSHA health measures because employees who accept the vaccine run some personal risk, presumably of a bad reaction. The justice, who like the eight others has received two vaccine doses plus a booster, wanted to have it both ways: to cast a cloud over the vaccine requirement while not being labeled an antivaxxer. “I don’t want to be misunderstood in making this point because I’m not saying the vaccines are unsafe,” he told the solicitor general.

    “I don’t want to be misunderstood,” Justice Alito repeated, adding: “I’m sure I will be misunderstood.”

    Edited From:

    https://www.nytimes.com/2022/01/17/opinion/supreme-court-vaccine-osha.html?smid=em-share
    ……………………………………………………………….

    He’s ‘not’ an Anti-Vaxxer, of course. But Justice Alito questions if Covid protocols in the workplace really fall under OSHA’s jurisdiction. As though infected employees are ‘not’ a threat to co-workers.

    1. Yet again, we see the Left’s totalitarian urges. That something is regarded as “good” (in this case, vaccination) means that government ought to force it on everyone.

  6. Since the courts don’t have armies the Guv should send in State Patrol asap to enforce. Even if the courts eventually side with the school district it will be too late.

  7. Republican Opposition To Mandates Has Shifted Right Of Trump

    After Mr. DeSantis refused to reveal his full Covid vaccination history, the former president publicly acknowledged he had received a booster. Last week, he seemed to swipe at Mr. DeSantis by blasting as “gutless” politicians who dodge the question out of fear of blowback from vaccine skeptics.

    Mr. DeSantis shot back on Friday, criticizing Mr. Trump’s early handling of the pandemic and saying he regretted not being more vocal in his complaints.

    The back and forth exposed how far Republicans have shifted to the right on coronavirus politics. The doubts Mr. Trump amplified about public health expertise have only spiraled since he left office. Now his defense of the vaccines — even if often subdued and almost always with the caveat in the same breath that he opposes mandates — has put him uncharacteristically out of step with the hard-line elements of his party’s base and provided an opening for a rival.

    Edited From:

    https://www.nytimes.com/2022/01/16/us/trump-desantis.html?smid=em-share
    ………………………………………………………………

    This piece illustrates how the anti-mandate movement has taken on a life of its own. Shockingly Republicans are moving to the ‘right’ of Donald Trump in their zeal to oppose all mandates. Never mind the omicron surge or the threat it presents to businesses and schools. Personal liberty is all that matters; placing ‘me’ over community.

    1. Me over the community is a bedrock principle of America. The entire Constitution and Bill of Rights is Me over the community.

        1. Let’s see:

          Nazi Germany was built on your collectivist premise, The United States (and its military) was built on an individualist premise. And our military fought to defend *individual” liberty.

          So, yes. That is how we won WWII.

    2. They oppose more then mandate. They oppose any and all Covid prevention measures and they have from day one.

      2. Most COVID antidotes though are wisely enthused. They sort of stay in the ‘first do no harm category.. once the known real therapeutics are eliminated by government edic, and the prescribed treatments deadly, all that is left is the homeopathic treatments. And some of them are looking Very Good.

    3. “personal liberty is all that matters”
      you say that like it’s a bad thing.

      1. It is. The conservatives used to be about “personal responsibility”, the idea that the government should stay out of the way because people could be trusted to do the right thing on their own and accept the consequences of one’s actions. Now that has changed to personal freedoms above all else, and even to the point of not taking responsibility at all and demanding that others bail them out.

        1. Sammy says: January 17, 2022 at 5:33 PM
          It is.

          4 observations:

          1. The Left are bullies and people are sick and tired of being bullied (see Manchin, Sinema, Dave Chapelle, Bill Maher, et al).

          2. Similar to most bullies, they can dish it out but can’t take it. They are cowards who play the victim every time they confront push back.

          3. When they’re wrong, they resort to demagoguery.

          4. You were a lot more fun when you used your former sockpuppets Peter Shill / John Burgoyne / Nail Salon Mistress of West Hollywood, et al

    4. Yes, placing “me” over “community” and my individual liberty, sovereignty over my own body.

      …..or should we all line up to “take the experimental jab(s)” for the good of the collective?

      These mRNA gene therapy shots have NEVER been used in humans EVER before this grand experiment.

      If it is a “Vaccine” then it protects YOU from me and what I do should not be a concern to YOU.

      But the jab does not work.

      Vaccinated people are getting sick and infecting other vaccinated people around them!

      People are being permanently and fatally harmed by these experimental injections, but that information is being hidden from the public.

      There is no “informed consent” being given. Just shut up, take the jab, bring your kids in for the jabs, and you do it for the greater good, regardless of the individual harm it does to you and your immune system!

      The whole thing is illogical.

      This not about Public Health.

        1. *50,000 freedom marchers coming to DC (that we know of so far)…..let’s get it to 100k or more!

    5. “. . . placing ‘me’ over community.”

      And there it is, again — the collectivist premise: The “good” of the community, of the public, of the Volk — superseding and trampling individual rights. That collectivist premise has been used to rationalize history’s most barbaric crimes: from the death of Socrates to the massacre of hundreds on millions in the 20th century.

  9. Another attack against Biden by Turley, who’s trying to claim that Youngkin has the power to overrule the CDC, but Biden didn’t when he tried to save workers from exposure to COVID while on the job. Of course, if Gorsuch, Barrett and Kavanaugh weren’t on the Court, we wouldn’t be having this discussion.

    Turley has a link to what he says is proof that masks other than N95 and KN 95 masks are ineffective. It is, of course, from Fox, his employer. Here’s one sentence from the link: “Surgical masks block the COVID-19 virus through its polypropylene electrostatic charge characteristics, while N95 masks have a tighter mesh of fibers than surgical or cloth masks with also electrostatic charge characteristics, which allows the mask to be most efficient at blocking inhaled and exhaled particles.”

    So, this sentence is saying that while N95 masks are better, surgical masks still block COVID, so, what’s the problem? Does Turley WANT to see COVID continuing to spread, or is this just more red meat for the disciples?

    1. Natacha wrote: “if Gorsuch, Barrett and Kavanaugh weren’t on the Court…”

      We would be Australia.

    2. The CDC finally admitted that masks are useless….nothing more than facial decorations and political theater.

      The science says: masking children and adults causes more harm than good. Mask mandates is about compliance and control. Not public health.

    3. CDC studies indicate feeding Natacha to the COVID virus will stop it dead in its tracks.

      😉

  10. Of course there seems to be no law at the federal level that allows wide open borders, or catch and release. Or just never catch them at all.
    There may be “workaround” since the CDC mandate is gradually less relevant as the omicron is so much more infectious and far less lethal. Sort of like “separate but equal” was overruled by subsequent decisions. The mask is only one part of a defense in depth of vaccination, social distancing, washing hands and using masks.and therapeutics. Also since we are talking the children here, they have been the least affected by the disease, physically. Pandemics are no respector of law, or elections or anything else. If ever this was true it’s during this pandemic which calls for rapid thought and change when necessary as conditions change. Local, flexible control is best with only overview and suggestions from higher layers of government and rapid response to requested needs from the local level. A massive government is not known for fleetness of thought or decision making.

  11. OT

    ILLEGAL

    SAY IT WITH ME: ILLEGAL.

    COMMUNISTS (LIBERALS, PROGRESSIVES, SOCIALISTS, DEMOCRATS, RINOS) STOLE THE 2020 ELECTION.
    _________________________________________________________________________________________

    “WISCONSIN JUDGE RULES BALLOT DROP BOXES USED IN 2020 ELECTION WERE ILLEGAL”

    A judge in the state of Wisconsin ruled on Thursday that the use of ballot boxes in the 2020 election was, in fact, illegal. Joe Biden was declared the winner over Donald Trump in the state by 20,682 votes.

    Waukesha County Circuit Court Judge Michael Bohren issued the decision in a lawsuit that had been filed on behalf of two voters by the Wisconsin Institute of Law & Liberty (WILL). WILL argued that the Wisconsin Elections Commission (WEC) had unilaterally issued guidance to election clerks, authorizing the use of ballot collection boxes, in contradiction of state law.

    “The guidance from the Wisconsin Elections Commission on absentee ballot drop boxes was unlawful. There are just two legal methods to cast an absentee ballot in Wisconsin: through the mail or in-person at a clerk’s office. And voters must return their own ballots,” commented WILL Deputy Counsel Luke Berg. “We are pleased the court made this clear, providing Wisconsin voters with certainty for forthcoming elections.”

    – By Athena Thorne Jan 16, 2022 12:24 PM ET
    _____________________________________

    P.S. “Tuesday” is the law in the Constitution – Presidential Elections must begin and end within the 24 hours of Tuesday – Voting in person has been understood since the inception of democracy in Greece.

  12. It’s not that cloth masks don’t block the Omicron variant, it’s that there is no standard for cloth masks. They can be one layer thick and made of a fabric too porous to be very effective. In addition, with no standard for design, there is no valid way to test them. As such, recommending that they no longer be used is the best option.

    Surgical masks remain effective in reducing Covid transmission. They do so by reducing the amount, and distance travelled, of water vapor.
    What you want to look for is ASTM Level 3 surgical masks.

    The N95 mask will also work to reduce transmission, while also providing the wearer with increased protection from getting Covid, when properly fitted, removed, and discarded.

    Simple test: Put on your mask and try to blow out a Bic lighter 6 inches away. If you can, get a different mask.

  13. [Warning: Off-topic]

    I guessed correctly. Our great Free Speech fighter once again displayed his hypocrisy by ignoring this big news:

    “The Pro-Trump Network OAN Is Getting Booted From DirecTV In What May Be A Major Blow To The Station”

    https://uproxx.com/viral/oan-one-america-news-network-booted-directv/

    We should have expected Turley to forcefully condemn DirectTV for removing One America News Network (OAN). On the other hand, OAN is a competitor of Turley’s Fox News as the article notes:

    “Founded in 2013, OAN didn’t take off until the Trump presidency, especially when the former president got mad at Fox News for being insufficiently dutiful to him, directing his base to OAN instead. The network has had its share of controversies, not the least being when one of its hosts called for the execution of thousands of people he alleged were involved in fictitious voter fraud.”

    I know my post is off-topic, but how else am I to raise an objection to Turley’s glaring failure in not denouncing DirectTV for removing OAN? I’m sure there are many of you here who watch OAN. Are you not offended by Turley’s silence? What about Newsmax? Do you think he will defend that network if it is likewise removed by DirectTV? We all know perfectly well where Turley stands on the calls of some Liberals to remove Fox from satellite and cable broadcasters. Is it possible that Turley and his Fox colleagues *welcome* OAN being taken off-the-air because Trump is mad at Fox and has directed his followers to watch OAN instead? What other reason could explain his silence?

          1. Thanks Fishwings. Rarely, if ever, do Trumpists contest my evidence, counter my arguments or provide examples disproving my contentions despite my open invitation to be corrected.

            I have to hope that my posts do raise doubts in their minds about Turley’s bona fides, but they don’t want to encourage me by voicing their suspicions too. I’ll never know how much of an impact I am making, but I know that I must speak my mind freely as Turley would want it. It’s a pity that the Trumpists do not heed his advice and counter my “bad” speech with speech of their own instead of calling me vile names, accusing me of hating Turley, or just wanting me to go away.

            1. Jeff: they’re just following the lead of the one they worship. They do the same thing with me, and it has become amusing. The fact that they buy the Big Lie proves that they are immune to facts. But that shouldn’t stop us from trying.

  14. For sure there are issues here…legal, scientific, political, popular opinion, but apparently not commonsense.

    if the Schools MUST comply. with State Law.and ignore Federal Law or the other way around……that raises yet more issues that would stem from either answer.

    Parent’s Rights as opposed to Government Rights….can be a sticky issue as School Boards are voted on by Parents and politicians like to stay in Office.

    Politicians like Teacher Unions support and financial contributions….so there is that as well.

    Then we have som every muddled science with even the CDC issuing contradictory guidance.

    Real life issues….including the uselessness of most masks in common use and an ever changing Virus provoke yet more problems.

    Then there is the complete lack of commonsense to all of this.

    Government’s one size fits all thinking is flat wrong.

    Commonsense tells me that if you think you are infected you stay. home, get tested, confirm or deny your being infected.

    If you want to get vaccinated you do…..as the vaccine helps the vaccinated directly not the non-vaccinated.

    If you test positive….you get started on effective therapeutics…..until you test negative.

    If you are offering a threat to others by coughing, sneezing, or in any way spewing aerosol droplets that might contain the virus….wear a mask….better yet stay home and get tested.

    Kids are far less harmed by Covid than at Risk Adults…..and the latest strain of the Virus….Omicron seems short lived and minor in its effects even if you do get it.

    Sadly….today….Commonsense is far more rare than a Purple Unicorn spewing Golden Pixie Dust.

  16. While for all the reasons Turley raises, I like what Youngkin has done, However I always yield to the people. In this case that would be the State legislature, and the local school board. I would much rather the court walkaway and allow the Legislature to do what the people want.
    The left may think they win, but local schoolboards, made up of teacher union mouth pieces, are about to shift to parents that care about the childeren, and want to work to neuter teacher unions.

  17. I thought Rs were big into returning control of schools to the local level, but I guess that takes a backseat to their quest to spread Covid. The Death Cult marches on.

    1. oh, you mean the Democrat Communist death cult which subsidizes and promotes the murder of thousands of human beings each year via abortion? that death cult?

      1. It’s ok to have “young kin”. When this guy’s great grand parents entered Ellis Island the officer there changed his last name from “Slaveman” to “Youngkin”

  18. Unfortunately, I think Professor Turley is probably correct about the implications of this sentence. The only solution would appear to be an amendment of the law.

  19. As a result, the school districts and the CDC may be able to prevail in preventing Youngkin from carrying out his pledge from the campaign.

    Democrat US House of Representatives in Virginia will lose even more seats this November precisely because they have coerced the children of Virginia to do their bidding, and thwarted the will of the parents. It’s not like the Democrats have learned anything from their humiliating losses to a White Evangelical Christian Governor, a Black Lt Governor, and a Cuban State Attorney General, all repudiating Democrat Wokeism

  20. “The Biden Administration previously called on teachers in Florida to defy state directives and President Biden even pledged to pay their salaries if they did so.”

    With what authority?! And, if he is referring to tax dollars, it isn’t his money to do with as he pleases!

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