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Youngkin’s order expressly rescinded Executive Order 79 by his predecessor, Governor Ralph Northam, and was issued pursuant to his authority under Article V of the Constitution of Virginia and §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. Since fabric masks are ineffective against Omicron, the school mask mandates are not science based. Fabric masks actually collect germs.

    Even those who wear N95 are not changing them regularly.

    What a mask can do is help contain your heavy droplets to yourself. It’s like holding a handkerchief to your nose when you sneeze. It keeps you from spitting when you talk.

    As an asthmatic, I was frustrated that so many were resistant to wearing masks at the beginning of the pandemic. However, studies have shown limited to no benefit from masking, depending upon how they’re worn. In addition, wearing a mask during exercise, or for long periods of the day, can make it difficult to breathe. I nearly passed out when loading 50 lb sacks of horse feed into the back of my truck. My hands were full so I’d kept my mask on. As soon as I pulled my mask away, I could breathe and felt better.

    Some people feel claustrophobic. It can be a disaster for those with acne, especially in hot and humid climates.

    There are concerns that children wearing masks while exercising is dangerous. Young children can make masks really gross in a short amount of time. They get a runny nose, and their masks are full of snot. They drop them in the bathroom and then put them back on. A girl at my son’s school got sick in class and vomited in her mask. Forcing 2 year olds to cover their nose and mouth is dangerous. They smother easily. Plus it may be psychologically damaging to force them to wear a mask, which might make them feel smothered. There are also consequences to social development when children cannot see the expressions of those around them.

    Then there is the danger of inhaling lint from wearing fabric masks all day at school.

    People with breathing difficulties are not given a break from masks.

    This is one of those instances where I didn’t see what the big deal was about masks until I learned more about the opposing point of view.

    If the masks prevented transmission, then there would be value. But it’s shown they do not with Omicron.

    1. The Cochrane Review is never cited by the liberal media, but they are taken very seriously in medical circles.

      Physical interventions to interrupt or reduce the spread of respiratory viruses

      doi.org/10.1002/14651858.CD006207.pub5

      Medical/surgical masks compared to no masks

      We included nine trials (of which eight were cluster‐RCTs) comparing medical/surgical masks versus no masks to prevent the spread of viral respiratory illness (two trials with healthcare workers and seven in the community). There is low certainty evidence from nine trials (3507 participants) that wearing a mask may make little or no difference to the outcome of influenza‐like illness (ILI) compared to not wearing a mask (risk ratio (RR) 0.99, 95% confidence interval (CI) 0.82 to 1.18. There is moderate certainty evidence that wearing a mask probably makes little or no difference to the outcome of laboratory‐confirmed influenza compared to not wearing a mask (RR 0.91, 95% CI 0.66 to 1.26; 6 trials; 3005 participants)….

      N95/P2 respirators compared to medical/surgical masks

      We pooled trials comparing N95/P2 respirators with medical/surgical masks (four in healthcare settings and one in a household setting). There is uncertainty over the effects of N95/P2 respirators when compared with medical/surgical masks on the outcomes of clinical respiratory illness (RR 0.70, 95% CI 0.45 to 1.10; very low‐certainty evidence; 3 trials; 7779 participants) and ILI (RR 0.82, 95% CI 0.66 to 1.03; low‐certainty evidence; 5 trials; 8407 participants). The evidence is limited by imprecision and heterogeneity for these subjective outcomes. The use of a N95/P2 respirator compared to a medical/surgical mask probably makes little or no difference for the objective and more precise outcome of laboratory‐confirmed influenza infection (RR 1.10, 95% CI 0.90 to 1.34; moderate‐certainty evidence; 5 trials; 8407 participants). Restricting the pooling to healthcare workers made no difference to the overall findings.

    2. You are all over the map. First, you make bogus legal arguments – essentially trying to create an 11th Bill of Rights that goes something like this “The right to bare faces shall not be infringed” and end with the false statement that masks to do not work.

  2. Oh yes, the Democrats love state law when it comes to wearing masks but they hate state law when it comes to elections. You go to the grocery and proudly wear your mask. You know you spit into the mask which makes you hesitant to wear it again on your next trip to the market. Let me offer a suggestion. Spit into your mask and then wear it all day. Better yet, let your children spit into their mask and wear it all day. Most people who sneeze into their hand wash it as soon as possible because we know it can form bacteria that we know can make us sick. Common sense isn’t very common. Oh well, wearing a mask is a great political issue for the Democrats until they think they might lose votes over it. Ole Joe says, “It might be time to turn tail on that one. Send the new talking points to CNN.”

  3. Why is it that language can be “sneaked” into a bill at the last minute? Isn’t there or shouldn’t there be a final date and time for proposed amendments to a bill before voting on it? A time period that allows sufficient time to read and object to proposed amendments? Or maybe that’s already the procedure and this language was just not objected to.

    1. The majority of state legislators and even those writing the law don’t read them or at the very least have an “idea” what it’s about. They rely on staffers to do the “hard” work of reading thru pages of legislation and legislators get the “summary”.

      It’s been shown multiple times that legislators often don’t read laws they vote on. Even the ones given to them by outside groups as “model legislation”.

    2. I’d love to know that, too. The democratic party was pretty much defiled for all time by the Clintons and the Obamas. That their followers are such brain dead sheep pretty much sealed the deal. Bring back brains, that’s my BBB.

  4. Generally speaking, on constitutional matters, the federal government can indeed intervene if a child or parents’ constitutional rights are shown to be violated by the state or local government. In this case, the issue would be: are parents rights supporting masking and/or vaccines (protecting their kids) being violated? The child’s education is being harmed if they stop sending their kids to school. When it’s public education, is it equal treatment under the 14th Amendment?

    On the flip side is Senate bill 1303 itself constitutional in most scenarios? It grants federal authority over a state’s authority, even when no rights are being violated – not requiring federal intervention (ie: checks & balances on the state & local governments). Could parts of the federal law itself be overturned as unconstitutional.

    As far as the science, as of today: vaccines, social distancing and fresh outdoor air seem to be somewhat solid evidence. Masking with clothe masks not so much. All this will be fleshed out in court.

  5. The defiant school districts may win this issue but they continue to strengthen the argument in favor of school choice and vouchers. Youngkin and Sears are both supporters and just got more parents on their side.

  6. I completely disagree with the school board’s decision. I do, however, do support their local control. If a substantial portion of their community, however, disagrees with their vote, then the people of the community needs to speak up by contacting their board members, attending board meetings, writing letters to the editor, and otherwise trying to effect positive change so parents have the freedom to choose what is best for their own kids in regards to masking.

  7. Go ahead our rogue NoVa districts. Follow the feds. Maybe they’ll make up the 55% reimbursement for operational costs the Commonwealth provides. If not you’ll get to sing the Croce blues: You don’t tug on Superman’s cape, you don’t spit into the wind, you don’t put that mask on that ol’ Lone Ranger and you don’t mess around with Glenn!

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