Press Club

Arlington School Board sues to challenge Youngkin’s mask order

(updated at 3:35 p.m.) The Arlington School Board is suing to stop Gov. Glenn Youngkin’s executive order that doesn’t allow school systems to require students to wear masks.

The lawsuit filed this morning (Monday) challenges the order issued by Youngkin on Jan. 15, his first day in office. Arlington joined school boards from Fairfax County, Alexandria City, Falls Church City, Hampton City, Prince William County and the City of Richmond in the suit.

The order states parents should be able to “elect for their children not to be subject to any mask mandate in effect at the child’s school or educational program.”

The order was supposed to take effect today but school districts across the state, including Arlington, already made decisions at the local level to go against the order and keep a mask requirement in place as part of a strategy to reduce the spread of Covid and maintain in-person instruction.

The lawsuit challenges the constitutionality of the executive order, and defends the right of school boards to enact policy at the local level. The lawsuit also claims the executive order goes against Senate Bill 1303, which was adopted in the General Assembly’s 2021 special session. The law states school boards should follow the Centers for Disease Control and Prevention’s health and safety requirements.

“Everyone in our community plays a role in keeping schools open and safe for students through consistent mask wearing and other mitigation measures,” APS Superintendent Fransisco Durán wrote in an email to families. “Our shared goal remains to make sure every student continues to access in-person learning five days per week. We look forward to the opportunity to ease these requirements in APS once public health guidance indicates it is safe to do so.”

APS spokesman Frank Bellavia said the schools continue to follow the same guidelines in place since the beginning of the school year.

“If a student is not wearing a mask, our schools are advised to speak to the student and provide them a mask to wear,” he said.

He said the vast majority of APS families support and adhere to the health and safety guidelines and when students arrived at school Monday, there were “very few incidents.”

The Arlington School Board put out a statement as well, stating it “stands together with participating school boards across the Commonwealth to defend our constitutional right to set policies and supervise our local schools. We continue to make decisions that allow us to keep schools open and safe for in-person learning, in accordance with Virginia law SB 1303 and the CDC’s guidance regarding the use of universal masks and other layered prevention strategies.”

Over the last seven days, 467 students and 98 staff members were positive for Covid, according to the school system’s COVID-19 dashboard.

The full press release from Arlington Public Schools is below.

Today, the Schools Boards of Alexandria City, Arlington County, City of Richmond, Fairfax County, Falls Church City, Hampton City and Prince William County, filed a lawsuit to challenge the constitutionality of Executive Order 2 issued by the governor on January 15, 2022. The legal action, representing over 350,000 students across the state, defends the right of school boards to enact policy at the local level, including policies that protect the health and well-being of all students and staff.

This legal action centers on fundamental questions about the framework of public education in Virginia, as set out in the Virginia Constitution and by the General Assembly. At issue is whether locally elected school boards have the exclusive authority and responsibility conferred upon them by Article VIII, § 7 of the Constitution of Virginia over supervision of the public schools in their respective communities, or whether an executive order can unilaterally override that constitutional authority.

Also at issue is whether a governor can, through executive order, without legislative action by the Virginia General Assembly, reverse a lawfully-adopted statute. In this case, Senate Bill 1303, adopted with the goal of returning students to safe in-person instruction five days a week in March 2021 and still legally in effect, provides that local school boards should follow The Centers for Disease Control and Prevention (CDC) health and safety requirements.

Without today’s action, school boards are placed in a legally untenable position — faced with an executive order that is in conflict with the constitution and state law. Today’s action is not politically motivated. These seven school divisions would welcome the opportunity to collaborate with the governor to ensure the safety and welfare of all students.

This lawsuit is not brought out of choice, but out of necessity.

With COVID-19 transmission rates high, our hospitals at crisis level, and the continued recommendation of health experts to retain universal mask-wearing for the time being, this is simply not the time to remove this critical component of layered health and safety mitigation strategies. School divisions need to continue to preserve their authority to protect and serve all our students, including our most vulnerable, who need these mitigation measures perhaps more than anyone to be able to continue to access in-person instruction.

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