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Youngkin’s order expressly rescinded Executive Order 79 by his predecessor, Governor Ralph Northam, and was issued pursuant to his authority under Article V of the Constitution of Virginia and §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.

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.

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