The Virginia Supreme Court has dismissed a lawsuit filed by parents in Chesapeake challenging Gov. Glenn Youngkin’s controversial mask-optional executive order — but the dismissal was on highly technical, procedural grounds and did not touch the merits of the case, leaving open questions about the order’s legality.
Wp Get the full experience.Choose your plan ArrowRight
Also Monday, a judge in Loudoun County ruled that the Republican governor and attorney general can join a different lawsuit, filed by a set of parents in that county’s school district, alleging the school board is violating the law by refusing to comply with Youngkin’s mask-optional order.
The rulings came shortly after Youngkin’s order was put on hold in at least seven Virginia school districts by an Arlington judge who delivered an opinion last week as part of another lawsuit — this one filed by the seven school boards for those districts and seeking to reverse the governor’s mask-optional policy. The order will remain on hold, allowing for mask mandates in those seven districts — Fairfax County, Alexandria, Richmond, Hampton, Falls Church, Prince William County and Arlington — until that case is decided. It is unclear whether the hold applies to all districts statewide, and the judge had not yet clarified the situation.
Advertisement
Story continues below advertisement
All this means the thorny legal tangle surrounding Youngkin’s mask policy is only likely to thicken, experts said.
Parents and teachers: Tell us about mask policies in your school
The seven justices on the state Supreme Court dismissed the Chesapeake parents’ suit early Monday, writing in a three-page opinion that it is impossible to grant the relief the parent plaintiffs asked for — writs of mandamus and prohibition that would have prevented Youngkin and the Chesapeake School Board from declaring masks optional in school — because such writs were not applicable or issuable in this case.
But the justices took pains to make clear they were not ruling on the legality or viability of Youngkin’s mask-optional order. “By this dismissal,” they wrote in a footnote, “we offer no opinion on the legality of EO 2 [Youngkin’s mask-optional order] or any other issue pertaining to petitioners’ claims.”
Advertisement
Story continues below advertisement
More than half of Virginia school districts are defying Youngkin’s mask-optional order
The Youngkin administration celebrated the ruling Monday, with Attorney General Jason S. Miyares (R) saying in a statement that the court’s ruling was “a victory for Virginia families.” The Chesapeake School Board is following Youngkin’s order and has made masks optional in that school system.
Youngkin said in a statement that he was pleased by the dismissal. “We will continue to protect the rights of parents to make decisions regarding their child’s health, education, upbringing, and care,” he said.
The attorney for the parents in Chesapeake wrote in an emailed statement that — as the seven justices had declared in their footnote — the court’s ruling was clearly not meant to decide the legality of Youngkin’s mask-optional order.
Story continues below advertisement
“So while the [Supreme Court of Virginia] has rejected the Chesapeake parents’ case on procedural grounds,” attorney Kevin E. Martingayle wrote, “it has not decided whether EO2 is legal. This is far from over.”
Advertisement
Legal experts essentially agreed with Martingayle. Carl Tobias, a law professor at the University of Richmond, said the court’s ruling is “completely procedural,” declaring only that the legal remedies sought by the Chesapeake parents, the writs of mandamus and prohibition, cannot be given on technical grounds.
Judge temporarily halts Youngkin order making masks optional in Va. schools after lawsuit from school boards
The court’s seven justices wrote in their opinion that a writ of prohibition can be issued only when an entity is acting in a judicial or quasi-judicial capacity — which neither the governor nor the Chesapeake School Board is doing by deciding to require or not require masks. A writ of mandamus can be issued only to force a public official to perform a specific duty that is clearly imposed by law, the justices wrote — but the governor and the Chesapeake School Board have discretion under the law when it comes to masking.
Story continues below advertisement
The justices wrote that Youngkin has general discretion to enforce the laws in his role as governor. School boards, they wrote, have discretion due to a state law passed last summer, S.B. 1303, that requires school districts in Virginia comply with federal health guidance “to the maximum extent practicable.”
Advertisement
By using that specific language, “SB 1303 necessarily gives the boards a degree of discretion to modify or even forgo those strategies as they deem appropriate for their individual circumstances,” the justices wrote.
Tobias said the justices’ ruling leaves intact the previous ruling from the Arlington judge, Louise DiMatteo, who last week held that Youngkin’s mask-optional order goes against the Virginia Constitution and state law.
Story continues below advertisement
“That’s still an open question on whether Executive Order 2 is legal, the [Supreme Court of Virginia] is saying,” Tobias said. “So the next thing is really for Judge DiMatteo to go forward or for her ruling to be appealed.”
Youngkin announced his mask-optional order last month on his first day in office. It is designed to give parents the choice whether to mask their children in school and is in keeping with Youngkin’s campaign promise to grant parents greater say over what and how their children learn in schools.
Advertisement
Almost immediately, the order prompted lawsuits in state and district courts.
Three days after Youngkin debuted the order, the Chesapeake parents sued to stop it in Virginia’s Supreme Court, arguing that the order violates the state constitution, which gives school boards the authority to oversee the school systems in their localities. The Chesapeake parents also contended that Youngkin’s order violates S.B. 1303.
Story continues below advertisement
In late January, the seven school boards also sued Youngkin over his order in Arlington Circuit Court, making essentially the same argument as the Chesapeake parents.
Youngkin is also facing a lawsuit from the American Civil Liberties Union of Virginia, which sued in U.S. District Court alleging that the mask-optional order deprives students with disabilities of their federally guaranteed right to a free, fair and appropriate public education.
ACLU challenges Youngkin order mandating choice on school masks
On the same day the ACLU sued Youngkin, a group of parents in Loudoun County Public Schools — in a wealthy and politically divided suburb that has seen significant furor over education in recent years — sued their school board for not complying with Youngkin’s executive order. The Loudoun school district, which enrolls about 82,000 students, has decided to keep requiring masks — joining 69 other school districts in Virginia, out of a total of 131, that have also defied Youngkin’s order, according to a Washington Post analysis.
Advertisement
Story continues below advertisement
The three plaintiffs in Loudoun charge in their lawsuit that the school district is violating the law by continuing to mandate universal masking.
At a hearing Monday, Loudoun County Circuit Court Judge James P. Fisher granted a motion for Youngkin and Miyares to join the three parents in their suit.
Bill Porter, an attorney for the school board, did not object to the motion but asked for time so attorneys could prepare for a hearing on a preliminary injunction parents have requested as part of the suit.
Porter said that the factual allegations in the lawsuit are “vast and broad” and that the school board thinks some are inaccurate, including one claim that a child was expelled from school for not wearing a mask.
Story continues below advertisement
He said the five children of the parents who are parties in the lawsuit are in school and wearing masks. Porter also filed a motion for a stay on the lawsuit, saying a similar case in Arlington County is already working its way through the courts.
Advertisement
“The legal issues are identical,” Porter said in court.
James Burnham, an attorney for the parents bringing the lawsuit, argued it was imperative the case move forward quickly. He said masking represents a physical and emotional burden on the families.
“Our view is that the parents are suffering irreparable harm every day,” Burnham said.
Virginia Solicitor General Andrew Ferguson argued against the stay, telling Fisher that “these are meaningfully different cases” in Arlington and Loudoun.
Fisher tentatively set a hearing on the motion to stay and a preliminary injunction for Feb. 16. It is not clear yet which Loudoun judge will preside at the hearing.