NORFOLK, Va. — The Virginia Supreme Court on Monday dismissed a challenge brought by Chesapeake parents over Gov. Glenn Youngkin’s executive order that seeks to end mandatory masking in schools.
The lawsuit was brought by 13 Chesapeake parents — all of whom have children in Chesapeake Public Schools — and asked the state’s high court to issue an emergency order blocking the new administration from enforcing the order.
In tossing the lawsuit, the Virginia Supreme Court did not take a stand on whether Youngkin’s executive order is lawful.
“By this dismissal, we offer no opinion on the legality of (the executive order),” the court said in a footnote to the three-page order.
Still, the court’s justices found that a Virginia governor holds significant “discretion” on how to go about executing state law. The high court further wrote that school boards hold their own discretion to decide how closely they must adhere to a recommendation from the Centers for Disease Control and Prevention that calls for universal masking in schools.
Virginia Attorney General Jason Miyares said in a statement that he and Youngkin are pleased with the ruling.
“We agree with the Court’s decision and will continue to defend the Executive Order,” Miyares said. “This is a victory for Virginia families.”
The executive order, which took effect Jan. 24, says no “teacher, school, school district, the Department of Education, or any other state authority” can force a student to wear a mask against his or her parents’ wishes.
Implementation of Youngkin’s executive order was previously put on hold by an Arlington County Circuit Court judge, who issued a temporary injunction Friday in a separate legal challenge. That case was brought by several school boards — including Hampton’s board — who claimed the order violates state law and that Youngkin overstepped his legal authority.
Youngkin’s office expects to appeal the Arlington decision, Youngkin’s press secretary Macaulay Porter said in a Friday Twitter post.
The case brought by the Chesapeake parents asked that the court prohibit Youngkin from acting on his executive order and instead order the governor to follow a state law passed last year. The suit also asked that the Chesapeake School Board be forced not to follow Youngkin’s order.
The lawsuit contended that Youngkin’s executive order is “in direct conflict” with that law.
The law says Virginia school districts must offer “in-person instruction” to students — but adhere “to the maximum extent practicable” to COVID-19 mitigation strategies from the CDC.
Given that the CDC currently recommends “universal masking” in public schools nationwide with only limited exceptions, the lawsuit asserted that that Youngkin’s order “rejects the recommendations of the CDC” and thereby violates state law.
But in Monday’s ruling, the Virginia Supreme Court said the remedies sought by the parents could not be applied in this case. A “prohibition” was not applicable because that’s a remedy used to restrain lower courts from acting beyond their bounds — and there’s no assertion that Youngkin is acting in “a judicial capacity.”
Moreover, the court ruled that a writ of mandamus — a court order telling a public official to take a certain action — isn’t appropriate. Though governors are required to ensure laws are faithfully executed, the court wrote that “executing the laws is ‘an executive function, requiring in its performance the exercise of ... discretion.’”
School boards also have their own discretion to decide how closely they adhere to CDC mitigation strategies, to include the recommendation that students be universally masked, the court wrote.
The language in the state law that says the CDC guidelines must be followed only “to the maximum extent practicable” gives school boards some wiggle room, the high court said. The law “gives the boards a degree of discretion to modify or even forgo those strategies as they deem appropriate for their individual circumstances,” the court wrote.
That discretion persists even if the governor’s order “is unlawful,” the court said.
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