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NEW: Bill making masks optional for students passes Va. Senate

The final vote in the Virginia State Senate for S.B. 739 (photo courtesy of screenshot/Virginia General Assembly)

A bipartisan bill that will allow parents to opt their kids out of masking rules at schools has passed the Democrat-controlled Virginia State Senate, despite opposition from Arlington’s senators.

The bill would take effect on July 1. If it were also to pass the House of Delegates and be signed into law by the governor, it would essentially make the local school boards’ recent, tentative court victory over Gov. Glenn Younkin’s executive order on masks in schools moot.

The legislation took shape yesterday when Sen. Chap Petersen, a Fairfax County Democrat, proposed an amendment on the Senate floor to a Republican-proposed bill that continues a requirement from last year to keep schools open five days a week for in-person instruction. Chapman’s amendment effectively sunsets mask mandates in time for the next school year.

The amendment “permits a parental option in regard to wearing a mask on school property,” Petersen told ARLnow. “We need to return to normal for the benefit of our children, and this legislation helps us get there.”

The amendment received significant Democratic support on Tuesday, passing the Senate with 29 votes in favor, including ten Democrats, and only nine votes opposed. Among local legislators, Sen. Janet Howell (D-32) voted in favor of the amendment while Sen. Barbara Favola (D-31) and Sen. Adam Ebbin (D-30) voted against it.

All three voted against the final bill, which passed by a 21-17 vote today.

Youngkin declared victory after the vote today. It’s likely to pass the Republican-controlled house.

“Kids across the Commonwealth win with this bipartisan vote today,” Youngkin said in a statement. “Parents are now empowered to decide whether their children should wear a mask in schools. I promised that as governor, Virginia would move forward with an agenda that empowers parents on the upbringing, education, and care of their own children. I am proud to continue to deliver on that promise.”

“This vote also shows that school boards who are attacking their own students are stunningly detached from reality,” the statement continued. “It’s time to put kids first and get back to normal.”

Petersen told ARLnow’s sister site FFXnow that he proposed the amendment because he’s frustrated that no deadline had been set by Fairfax County Public Schools for lifting mask requirements or “shown scientific proof” that it has made difference in limiting Covid’s spread.

He agreed with Youngkin that masks should be optional in schools, but said decision needs to be made by the Virginia General Assembly as opposed to the governor.

That was the basis for the decision made by the Arlington Circuit Court last week to issue an injunction on banning mask mandates. In its lawsuit against the governor’s order, Arlington Public Schools cited a Virginia law passed during the pandemic that requires schools to take necessary, federally-recommended safety measures to combat the spread of the virus.

With the new bill overriding that clause, the court victory could be short-lived for APS and other Northern Virginia school districts that opposed the governor’s order. The bill’s implementation could even potentially be moved up after it reaches the governor’s desk, the Washington Post reported

When the bill gets to Youngkin’s desk, the aide said, the governor could add an emergency clause that would require the law to be implemented immediately. That would have to go back to the General Assembly for approval. Most bills with emergency clauses require 80 percent approval from the legislature, but a governor’s request for emergency needs only a simple majority vote. If that’s granted, the mask law could go into effect as soon as the end of February, the aide said.

Sen. Ebbin wrote to ARLnow in an email after the amendment passed that, while he isn’t opposed to lifting mask mandates soon, he wants the decision to be based on data.

While I would like to see an off-ramp to mask mandates, it needs to be grounded in science and public health rather than just a decision that we are tired of masks. For example, a recent study on the real-world effectiveness of masks showed that their consistent use lowered the odds of testing positive as much as 83%, It is essential that we keep schools open and minimize the number of days students and teachers need to be out sick, and consistent mask-wearing provides a scientific-based tool to do so. I empathize with parents and students who are tired of masking. I would have supported legislation calling for an eventual end to mask mandates based on specific public health measurements and scientific guidance that school districts could rely on and adopt. Masks have helped avoid the spread of COVID-19 and undoubtedly protected the health of many. I believe we are near the point where mask mandates can be lifted, but don’t want to be arbitrary about it.

He echoed these comments today during the Senate’s debate on the bill.

Favola, too, voted against the amendment and the revised bill. She told ARLnow in a statement after the amendment vote that it was due to the fact that the state constitution gives the school boards the power to make these types of decisions.

The Virginia Constitution gives authority to operate public schools to local school Boards. Article VIII, Section 7 of the Virginia Constitution provides that “the supervision of schools in each school division shall be vested in a school board.” This is an unequival directive. School boards are elected by the constituents they serve. The question of a mask mandate should be decided by school leaders who are held accountable by constituents with a wide range of views, who seek advice from scientists and public health officials and who understand community transmission issues. In a public health crisis, we need to be responsible not only for ourselves but for each other. The amendment that passed confuses the issue of accountability and places teachers, students and school leaders in an untenable position given their responsibility to create safe and healthy learning spaces. Creating safe and healthy learning environments are critical to keeping our schools open for in-person instruction.

During the debate, Favola reiterated this stance, while saying that the amendment has confused school boards, which are now unsure of what to do. She asked her Senate colleagues to “wait a moment and let the court case play itself out.”

ARLnow reached out to Howell about why she decided to favor the amendment but oppose the bill. She has yet to respond as of publication.

As for how all of this impacts Arlington and the other local school boards’ lawsuit against Youngkin, both Arlington Public Schools and the school boards’ attorney, John Cafferky, told ARLnow that they were not ready to speculate or comment.

“Since this hasn’t passed or signed into law, we don’t have a comment on the amendment to SB 739,” APS spokesperson Frank Bellavia said.

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