The school boards — led by Fairfax County Public Schools, which oversees the largest and most prominent district in the state — are arguing that Youngkin’s order violates the Virginia Constitution. Their suit, filed Monday morning in Arlington Circuit Court, asks for an immediate injunction barring enforcement of Youngkin’s order, which sought to leave masking decisions to parents, contravening federal health guidance and the masking mandates that the vast majority of Virginia school districts have maintained throughout the pandemic.
The school boards joining Fairfax’s suit include those for Alexandria City Public Schools, Arlington Public Schools, Falls Church City Public Schools, Hampton City Schools, Prince William County Public Schools and Richmond Public Schools. The seven boards said in a statement Monday that “school divisions need to continue to preserve their authority to protect and serve all students, including our most vulnerable who need these mitigation measures perhaps more than anyone” to keep attending school in person.
“Without today’s action, school boards are placed in a legally untenable position,” the school boards said in the statement. “Today’s action is not politically motivated … the lawsuit is not brought out of choice but out of necessity.”
Youngkin spokeswoman Macaulay Porter said in a statement Monday morning, responding to the suit, “We are disappointed that these school boards are ignoring parent’s rights. The governor and attorney general are in coordination and are committed to aggressively defending parents’ fundamental right to make decisions with regard to their child’s upbringing, education and care, as the legal process plays out.”
It is the second lawsuit the governor has faced over his mask-optional order since he announced it in mid-January on his first day in office. In its brief existence, according to a Washington Post tally, the order has also drawn promises of defiance from at least 58 of Virginia’s roughly 130 school districts, whose boards voted at meetings — or superintendents announced in statements — that they intended to keep requiring face coverings for students. The superintendent of the Fairfax system, Scott Brabrand, said he was prepared to remove from class students who show up maskless.
In many classrooms Monday, things played out calmly, with students sitting down for their lessons either masked or mask-free depending on which policy their school district had adopted, and how their parents felt about the matter.
But in some districts that had promised to keep requiring masks, messier scenes developed, with parents showing up to school maskless and determined to send their children into class without masks, too. In response, administrators in some places sent children into confined rooms or asked that parents come by to pick them up.
A particular hot spot was Loudoun County, a wealthy and politically divided district that has been in the national spotlight for more than a year over persistent educational culture wars. The battles have spanned issues including critical race theory, sexually explicit texts and the rights of transgender students, and on Monday settled firmly around the masking debate.
Elicia Brand, a Loudoun County parent and co-founder of the advocacy group Army of Parents, said Monday that anti-mask parent activity was planned for 31 campuses in her school district. Loudoun schools spokesman Wayde Byard said the district saw parent demonstrations outside at least one high school and a middle school in Purcellville, where parents handed out doughnuts to students walking to school if the students promised not to wear masks.
Close to 9:30 a.m. outside Loudoun’s Woodgrove High School, a group of parents circled around roughly 20 high school students who were preparing to walk into the building without masks. As the group of students crossed through the front door just in time for first bell, the parents began yelling, “Free your faces!”
Once the students got inside, some informed their parents via phone that they were being placed into an auditorium, away from other students. Clint Thomas, one of the parents, pressed the intercom button at the school’s front doors repeatedly to demand a meeting with the school’s principal, William Shipp. About 15 minutes later, Shipp walked outside, removing his mask as he did so.
He told the group that an assistant principal was watching over maskless students in the auditorium, where the students would remain all day or until they put masks back on. He said the students had access to a restroom, and that they would eat lunch by themselves, earlier than the rest of the masked student body.
Parents asked about students who had tests that day, and those who felt “intimidated to wear a mask." One parent called administrators’ insistence on masking unacceptable bullying.
Shipp replied that he would “take a look at what’s going on.”
Byard, the system spokesman, said Loudoun officials sent 30 maskless children into isolation in the auditorium at Woodgrove, in addition to isolating about 30 students across at least three other campuses throughout the county. He said officials offered these students instruction through the online platform Schoology, with teachers visiting them to offer help as needed. He said any students who opted to go home were allowed to do so.
Fairfax school board Chair Stella Pekarsky said in an interview Sunday that all the seven school boards filing suit want to do is follow the law, as well as pass good policies.
“This issue at heart is about local control," she said. "Can we make policies for our school system, or does the governor get to come and do that for us?”
Pekarsky added: “The governor is not a part of our local government. We do not work for the governor. He does not tell us what to do.”
Of the districts whose boards are filing suit, six had already said they will continue requiring masking indefinitely. Falls Church City, by contrast, had decided that masks would be optional after Feb. 14 or as soon as the district’s coronavirus transmission rates fall into the “moderate” range.
In other places, though — especially in rural and conservative areas — school boards quickly voted to follow Youngkin’s order. And some parents planned to hold protests outside schools Monday in favor of optional masking.
Youngkin, meanwhile, has said he will use every resource at his disposal to enforce his mandate, and his spokeswoman did not rule out yanking funding from disobedient districts. The governor also tweeted over the weekend that parents should listen to their school principals, noting he expects that the Virginia Supreme Court will soon intervene to uphold his executive order.
The 30-page lawsuit filed by the school boards requests that the Arlington court enter a judgment declaring Youngkin’s mask-optional order “invalid” and “void” according to state law. The boards further request that the court enjoin Youngkin from taking any actions to enforce his order, including “withholding any funding, service, or other resource from any or all of the School Boards.”
They are also requesting that the court award the school boards “costs and fees expended in connection with this action” as well as any extra relief deemed appropriate.
In the complaint, the school boards’ lawyers write that Youngkin’s mask-optional order threatens to destroy a so-far successful year of in-person learning.
The governor’s order has forced Virginia schools to “face the real and imminent threat of having covid-19 outbreaks occur at multiple schools, endangering the health of students and staff, and causing those schools at least temporarily to be shut down,” the suit reads. It has also “created significant uncertainty among students, parents and guardians.”
Stephen Farnsworth, a political science professor at the University of Mary Washington, said the twin suits place significant pressure on the Virginia court system to step in soon and resolve the debate. Attorney General Jason S. Miyares said over the weekend that he is optimistic the Virginia Supreme Court will intervene in the Chesapeake parents’ lawsuit early this week. But the timing remains unclear — and the second suit complicates the situation.
“In situations like this, where there is no middle ground and where neither side has any interest in backing down, only judges can be the necessary umpires,” Farnsworth said. “The sooner they do so, the better for all concerned.”
Pekarsky, the Fairfax board chair, said school officials in her district have been working overtime and on weekends in recent days to put together the lawsuit. She said the board decided to file its own lawsuit, rather than join the one already filed by parents in Chesapeake, because the board wanted to sue over what it sees as Youngkin’s attempt to usurp the constitutionally granted authority of school boards to determine school system policy.
She said the Fairfax board had kept in close communication with the other school boards joining the suit over the past week or so.
“Through those conversations, we’ve been able to build that collaboration to file together,” Pekarsky said. “I mean, this is critical to the work of every single school board. It is that important.”
Pekarsky said Fairfax’s masking requirement, combined with other precautions, has kept students learning safely in person throughout this academic year. She said the district has not once been forced to shut down a school because of high transmission of coronavirus cases.
Youngkin’s predecessor, former governor Ralph Northam (D), issued a public health order over the summer requiring masking inside schools — which bears superficial similarity, Pekarsky acknowledged, to Youngkin’s attempt to tell school districts what to do about masking.
But Pekarsky said Northam’s order was acceptable because it did not go against what Fairfax had already decided to do — require masking — or against federal health guidance or Virginia state law.
Northam’s mask mandate “was in accordance with what we needed to do to keep our students safe,” she said.
Pekarsky said her message to parents who do not want to mask their children at school is to have patience. She said that Fairfax’s school board wants to find an “off-ramp for masks,” too, but that the board is committed to doing so in a way that does not jeopardize student and staff safety.
She said she has a message for Youngkin, too.
“Our priority is to keep kids and staff safe and to keep them in school, to keep them learning,” Pekarsky said. “We are happy to work with the governor and with anybody who shares that same goal.”
Elsewhere in Loudoun, Heather Jermacans woke up Monday morning and sent her three children — a third grader and two middle-schoolers — to their schools maskless. Officials at Francis Hazel Reid Elementary quickly placed the third-grader, a boy, into a room by himself, Jermacans said, and the principal phoned Jermacans and her husband asking them to come pick up the child.
But Jermacans’s husband was at work, and Jermacans had no plans to comply. She was already taking her two middle-school daughters to their lessons at Smart’s Mill Middle in Leesburg. The girls walked inside and were promptly sent into a separate room with about a half-dozen other kids who were also maskless, Jermacans said.
Her daughters swiftly became scared and tearful, said Jermacans, who is staying in touch with her children via videochat. Jermacans, meanwhile, stationed herself outside the middle school along with a half-dozen other parents of the other isolated, maskless children.
“All the girls are crying and we’re telling them to stay strong, that we’re outside supporting them for the future,” Jermacans said. “I will sit here all day.”
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