A Loudoun County judge issued a temporary injunction Wednesday immediately barring the county’s public school system from enforcing its mask mandate the same day the Virginia General Assembly passed legislation requiring all districts to go mask-optional by March 1.
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The measure, signed into law Wednesday by Gov. Glenn Youngkin (R), will probably bring to an end legal wrangling over two lawsuits brought by parents in Fairfax and Loudoun counties. Loudoun County Public Schools initially announced Wednesday that it would make masks optional starting next week, but with the judge’s ruling, the option begins Thursday.
Superintendent Scott Ziegler referenced the ruling in a Wednesday night message to families announcing his district’s change in masking policies.
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“I completely understand the frustration many of you have felt over the past few weeks and months related to school COVID-19 mitigation strategies, particularly masking. I also understand that this is a rapid change,” Ziegler wrote.
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Students who have been previously punished for not complying with coronavirus mitigation measures would have their records cleared of that infraction, according to the judge’s order, Ziegler said.
A spokeswoman for Fairfax County Public Schools said officials for the district of 180,000 students were still reviewing what the new law means for the county. It is highly likely, however, that the state law will force Fairfax — and every other district in Virginia — to relax mask mandates.
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The parents in both Loudoun and Fairfax sued over their districts’ refusal to obey an executive order Youngkin issued last month that sought to give parents across Virginia the right to opt their children out of masking requirements. The Loudoun and Fairfax systems were two of 70 districts statewide that opted to keep requiring masks despite Youngkin’s order, according to a Washington Post analysis.
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During the hearing Wednesday, Loudoun County Circuit Court Judge James P. Fisher said the group of Loudoun parents, joined by the state of Virginia, were likely to prevail in the lawsuit, which argued that the school board was flouting the law by failing to follow the governor’s order.
“The executive order is a valid exercise of the governor of Virginia,” Fisher said.
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Youngkin issued his executive order on Jan. 15, his first day in office.
The legal challenges came quickly: First a group of parents in Chesapeake sued to halt the order, alleging it violates state law and the constitution, although the Virginia Supreme Court later dismissed that suit on technical grounds.
Then seven school boards, including the board for Fairfax schools, filed suit in Arlington County Circuit Court making the same allegations — that the mask-optional order is unconstitutional and illegal. In early February, Arlington County Circuit Court Judge Louise DiMatteo issued an initial ruling in that case temporarily barring the enforcement of Youngkin’s mask-optional policy in the seven school districts whose boards are suing. The case remains pending.
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Just before DiMatteo’s ruling, the American Civil Liberties Union of Virginia filed yet another suit against Youngkin’s order, this one in U.S. District Court, alleging that the mask-optional order makes it impossible for students with disabilities to access their federally guaranteed free, appropriate and fair public education. That suit is also pending.
On the same day the ACLU sued, Feb. 1, the Loudoun parents filed their lawsuit. Two weeks after that, the Fairfax parents filed theirs.
The Fairfax lawsuit names the school board and the district superintendent, Scott Brabrand, as defendants. It was filed in Fairfax County Circuit Court on Feb. 14 by three parents, Carrie Lukas, Stephanie Lundquist-Arora and Misty Lombardo, who cumulatively enroll 10 children in Fairfax County Public Schools.
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The 12-page lawsuit requests immediate injunctive relief prohibiting the Fairfax school system from enforcing mask mandates or imposing punishments on any students who show up to school maskless. It also asks for declarations that Fairfax’s school board and superintendent have violated Youngkin’s executive order and state law.
The suit specifically alleges that the superintendent and school board violated a section of the Virginia code that gives parents a “fundamental right to make decisions concerning the upbringing, education, and care” of their children.
“Plaintiffs are suffering ... social, educational, and developmental harms, physical harms caused by mask wearing, and loss of liberty by virtue of the mask mandate’s deprivation of their rights,” the suit states.
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Asked about the lawsuit Wednesday, Lukas shared a news release in which she said her children at Forestville Elementary were denied entry to their school building when they showed up without masks recently. Instead, her children were marked with unexcused absences, Lukas said.
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“Hundreds of parents from across the state have affirmed that they want to opt their children out of mask mandates,” Lukas said in the news release. “It’s time for this to end and for [Fairfax schools] to respect parents’ rights.”
During Wednesday’s hearing in Loudoun, Virginia Solicitor General Andrew Ferguson and an attorney for a group of Loudoun County parents made similar arguments, saying the local school board had violated the law by continuing to require students to wear masks in schools after Youngkin issued his order.
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“We’re here to halt the serious mistreatment of students by their school board,” Ferguson told the judge.
Ferguson claimed the board’s policy had resulted in students who declined to be masked being segregated and ostracized, including 21 who were currently suspended.
Ferguson said some unmasked students were made to attend class in separate rooms from classmates and use different restrooms. He said others couldn’t attend extracurricular programs.
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Ferguson said such restrictions made little sense because children are least susceptible to covid-19.
Legally, he said, Virginia’s emergency laws gave the governor the ability to issue orders that have the force of law. He said a state law that requires schools to comply with Centers for Disease Control and Prevention mitigation guidelines on covid-19 to the “maximum extent practicable” does not preclude that power.
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But John Cafferky, an attorney for the school board, argued the law known as SB1303 and Virginia’s bedrock legal principles meant state school boards had the authority to set mask rules in schools.
“Under the constitution and statutes, it’s not up to the governor,” Cafferky said.
Cafferky argued that masking had helped prevent coronavirus outbreaks in schools and said it had not caused major disruptions for the vast majority of Loudoun’s 81,000 students.