A federal judge in Charlottesville ruled Wednesday that a handful of schools in Virginia could mandate face masks if necessary to protect a dozen immunocompromised children whose families sued over policies that make masks optional.
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The ruling includes schools in Loudoun and Fairfax, the largest districts in the state. Judge Norman Moon emphasized repeatedly, though, that he is not undoing state law and an executive order that make masks optional. His order is limited to the 12 families who sued in Charlottesville federal court, whose children attend 10 different school districts in Virginia and range in age from preschool to 11th grade. Those children, he ruled, can ask their schools to require masks as an accommodation for their disabilities.
But Moon refrained from challenging a recent state law and a similar executive order from Gov. Glenn Youngkin (R), both of which made masks optional in Virginia public schools. Those “remain in force,” Moon wrote in his ruling, “affording parents the choice whether their children should wear masks to school, notwithstanding any school rule that would require students to wear masks.”
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He added that, although he is granting the school systems attended by the 12 students the right to flout the law, school officials are not mandated to do so.
Virginia school districts make masks optional in response to law
Both sides claimed victory after the ruling, a preliminary injunction that comes before extensive litigation. Virginia Attorney General Jason Miyares (R) said in a statement that the ruling affirms that “parents have the right to make choices for their children.”
The American Civil Liberties Union of Virginia, which filed the lawsuit on behalf of the 12 families, said in a statement Thursday that “the injunction is a win for schools and students. Schools in the 10 impacted districts can now make accommodations to keep students safe.”
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Chris Seaman, one of the parent plaintiffs, called the decision “basically everything we had asked for.” He is grateful on behalf of his son, an 8-year-old with leukemia.
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The third-grader at Brownsville Elementary in Albemarle County is not attending school because he has underwent chemotherapy, T-cell therapy and a bone-marrow transplant, Seaman said, and his doctors do not think attending school is advisable at the moment. But Seaman is hopeful his son can go back to school safely soon, much more hopeful now because of the ruling, he said. Seaman spoke on condition that his son be kept anonymous to protect the boy’s privacy.
“My son is very happy to hear that, when he’s able to go back to school, that hopefully he’ll be able to be in a classroom with other kids who are masked,” Seaman said. “He really loves school. He’s a very bright 8-year-old and he really wants to see his friends and be back in a classroom.”
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The Virginia ACLU had argued in its suit that making masks optional in public K-12 schools violates federal disability law because it puts vulnerable children at risk, denying them their right to a free, appropriate public education. The plaintiffs are parents of 12 students with conditions including asthma, Down syndrome, cystic fibrosis, cancer and diabetes, all of which put the children at higher risk for coronavirus infection.
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The lawsuit targets a law passed by the General Assembly early this year that makes masks optional in public schools throughout the state. It claims that the law leaves “parents of many Virginia children with disabilities with an unconscionable choice: to choose between putting them at risk of severe illness” and “keeping them home with little or no education.” It continues, “For many of these children, the Commonwealth has effectively barred the schoolhouse door.”
Moon wrote, “This is not a class action, and the twelve plaintiffs in this case have no legal right to ask the court to deviate from that state law in any schools in Virginia (much less school districts) their children do not attend, or indeed even those areas of their schools in which plaintiffs’ children do not frequent.”
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But, he said, the state law “cannot preclude plaintiffs from asking for some required masking as a reasonable modification, nor bar their schools from implementing some required masking, if doing so would, in fact, be a reasonable modification.”
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The ruling is the latest twist in a battle over school masking that has raged in Virginia since Youngkin took office in January. On his first day in office, he issued an executive order allowing parents in school districts statewide to opt their children out of masking rules, which the vast majority of Virginia’s 133 school districts had maintained for much of the pandemic to fight the spread of the coronavirus.
More than half the districts immediately disobeyed the order. It also generated a flurry of lawsuits both for and against optional masks, including one from the Virginia ACLU, which filed a lawsuit challenging the executive order in early February.
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But all the legal fighting became moot in later that month, when the General Assembly passed and Youngkin signed legislation requiring school districts in the state make masks optional. After that, the Virginia school districts that had kept mask mandates swiftly, if grudgingly, dropped them, allowing students and parents to choose whether to wear masks.
ACLU challenges Youngkin order mandating choice on school masks
Still, the Virginia ACLU vowed continued legal action, tweeting around the time the measure became law that the group would see Youngkin “in court.” The Virginia ACLU soon formally amended its lawsuit so it targets the legislation as well as the executive order signed by the governor.
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The amended suit says that both the law and the executive order “increase the exclusion and segregation of students with disabilities, deny them equal access to public school, interfere with schools’ ability to comply with their obligations under federal law” and “illegally force parents of students with disabilities to choose between their children’s education and their health and safety,” in violation of the Americans with Disabilities Act.
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The 10 school districts affected by the ruling are Albemarle County Public Schools, Manassas City Public Schools, Henrico County Public Schools, Chesterfield County Public Schools, Cumberland County Public Schools, York County School Division, Bedford County Public Schools, Chesapeake City Public Schools, Loudoun County Public Schools and Fairfax County Public Schools. The latter two are among the largest in the state, with about 81,000 and 180,000 students, respectively.
It is unclear how the school districts will respond. It is also unclear exactly what the students whose families are plaintiffs will ask from their schools in terms of masking accommodations.
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Eden Heilman, the legal director of the Virginia ACLU, said Thursday that “this is very much still a work in progress as the order didn’t come in until last night and so some of our plaintiffs are just finding out.” She said the group will collaborate with families in coming days to determine appropriate requests and ensure they are fulfilled by school officials.
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But at least one family, Heilman said, has successfully obtained accommodations from their school district. Tasha Nelson, whose child attends Manassas City Public Schools, asked school officials to require children in her son’s class to mask during periods of moderate to high transmission of the coronavirus, based on the recommendations of her child’s doctor at Johns Hopkins. The district agreed, Heilman said. The Manassas system did not respond to a request for comment about the matter.
Seaman, in Albemarle, said he is planning to consult with lawyers before he conducts any outreach to his school system or elementary school. However, he said, his requests will likely include universal masking in the classrooms attended by both of his sons, the immunocompromised third-grader and a kindergartner.
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“We need to talk to our lawyer about what we’re going to ask for and when,” he said.
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A spokeswoman for the Fairfax system said Thursday that district officials were reviewing the ruling and its implications for the system. A spokesman for the Loudoun system said Thursday morning that he would check on the school’s response.
A spokesman for the Bedford system said Thursday that the district is aware of the ruling and is “currently consulting with attorneys on the matter,” adding that it “does not provide comment on individual student matters.”
Superintendents for the remaining seven districts, including Manassas, did not respond to requests for comment.