Virginia governor’s mask order prompts dueling lawsuits

RICHMOND, Va. (AP) — An executive order by Gov. Glenn Youngkin that allows parents to opt out of COVID-19 school mask mandates prompted dueling lawsuits Tuesday, one siding with Youngkin and the other challenging his order.

Parents of children with disabilities filed a federal lawsuit, arguing that forcing schools to repeal their mask mandates effectively excludes those students from public schools, in violation of the Americans With Disabilities Act. A separate suit was filed by three parents against the Loudoun County School Board for ignoring Younkin’s order and continuing the school district’s mask mandate.

Youngkin, a Republican, issued the executive order on his first day in office on Jan. 15. A group of parents from Chesapeake and seven school boards are also challenging the order in court.

The plaintiffs in the federal suit filed Tuesday are students with disabilities that make them particularly susceptible to severe illnesses if they contract COVID-19. Those conditions include cancer, cystic fibrosis, asthma, Down syndrome, lung conditions and weakened immune systems, according to the American Civil Liberties Union of Virginia, which is representing the parents, along with the Disability Law Center of Virginia, the Washington Lawyers’ Committee and two private law firms.

“Children with serious medical conditions need to feel safe at school. Mask mandates allow them to access the educational services to which they are entitled,” said Colleen Miller, executive director of the Disability Law Center.

The lawsuit argues that Youngkin issued his order despite guidance from the federal Centers for Disease Control and Prevention that recommends indoor masking for everyone, ages 2 and older, including students, teachers, staff and visitors, regardless of vaccination status. The complaint asks the court for a permanent injunction lifting the executive order.

Since the order went into effect on Jan. 24, some school districts have defied it, arguing that the order is at odds with a 2021 state law that says that school districts are required to offer in-person instruction that adheres “to the maximum extent practicable” to COVID-19 mitigation measures recommended by the CDC. Other districts have complied with the order.

Youngkin and Virginia Attorney General Jason Miyares have cited a state law that says parents have a “fundamental right to make decisions concerning the upbringing, education, and care” of their children. Miyares has also argued that Youngkin’s order falls well within the broad authority given to the governor to address the challenges of the COVID-19 pandemic.

The lawsuit filed against the Loudoun County School Board says the board has continued to require masks even after the governor’s order took effect.

It argues that the school board lacks the authority to impose the universal mask mandate, that its mask mandate violates the governor’s executive order and that the board is denying students an in-person education in violation of state law. The plaintiffs’ children were at various times sent home or kept home because their parents objected to the continued mask mandate after the issuance of Youngkin’s order.

The school board continues to demand that students “wear restrictive facemasks for up to seven or eight hours a day – imposing physical, psychological, and developmental consequences that could be severe,” the lawsuit alleges.

It says the school board’s actions have directly interfered with the rights of each plaintiff to make educational decisions for their own children.

“Virginians are currently free to eat at restaurants, stroll shopping malls, go bowling, watch the NFL playoffs at a local tavern, and engage in innumerable other indoor activities – all without wearing masks. Yet children in Loudoun County’s public schools remain trapped in 2020-era pandemic policies that are increasingly difficult to justify as we approach the two-year anniversary of COVID-19’s arrival in the United States,” the lawsuit says.

Neither Youngkin’s office nor the school district immediately responded to requests for comment.