Chesapeake parents sue Gov. Youngkin over executive order removing mask mandate in schools

CHESAPEAKE, Va. (WAVY) — 13 parents of Chesapeake Public School students are suing newly-elected Republican Gov. Glenn Youngkin over his executive order to make face masks optional in K-12 schools in Virginia.

They are asking for Virginia’s Supreme Court to step in and stop the order’s implementation ahead of Monday in order to avoid their children from suffering “irreparable harm and damage.”

The parents’ argument centers around previous legislation that mentions the consideration of the Centers for Disease Control and Prevention guidance. In the 10-page petition, it’s argued that “Governor Youngkin lacks the authority he claims,” to make such an order.

Along with Youngkin, those named in the lawsuit include Virginia Acting State Health Commissioner Colin Greene, Virginia Acting Superintendent of Public Instruction Jillian Balow, the Chesapeake School Board and Chesapeake City Public Schools Superintendent Dr. Jared Cotton.

View the full lawsuit here.

Youngkin’s Executive Order Two calls the mask mandates in schools “ineffective and impractical” and orders that masks can be optional for students starting next Monday, Jan. 24.

Youngkin’s signature fulfilled a “day 1 promise” he made during his campaign to end mask and vaccine mandates. However, it went further than he originally let on.

Days after the election, Youngkin told 10 On Your Side he would leave the decision on masks up to local school districts.

“Localities are going to have to make decisions the way the law works and that is going to be up to individual decisions but, again, from the governor’s office, you won’t see mandates from me,” Youngkin said in an interview.

The order as signed says a parent may elect for their children not to be subjected to any mask mandate in effect at the child’s school.

“I was really surprised and very concerned,” said Matthew Castillo, one of the parents bringing the suit, after hearing that.

Castillo, who has two children in Chesapeake Public Schools, said he knew the mask mandate would be going away from the state level, but didn’t think Youngkin would try to tell school boards what to do.

“Governors don’t have the authority to overwrite an existing law with an executive order,” Castillo said.

The existing law he is referring to is one signed by former Gov. Ralph Northam last year, SB1303. It mandated schools provide in-person classes five days a week.

Language is included that states school boards have the responsibility of adhering to the maximum extent of practicable mitigation strategies provided by the CDC.

Currently, that includes universal masking.

“I don’t think there’s going to be a time where masks are not practicable as long as they are being recommended by the CDC,” Castillo said.

However on Monday State Sen. Siobhan Dunnavant (R-Henrico), one of the sponsors of the SB1303, argued that masks in K-12 schools may no longer be considered practicable.

“Today, we know that the risk of hospitalization for children is almost none.  In fact, of Virginia’s estimated almost 1.9 million children, .07% have been hospitalized with Covid-19 since March 2020,” Dunnavant said in a statement. “The risk of Covid-19 to children does not justify the universal need for masks in school, nor does SB1303 mandate the use of masks. It is time for our governing bodies, including school boards, to develop achievable ‘off-ramps’ for the Covid-19 protocols, based on sound scientific principles. The default option should always be normalcy for our children unless there is evidence or metrics to back up the protocol.”

Attorney Kevin Martingayle argues that in trying to overstep the state law, Youngkin is trying to do what former Gov. Terry McAuliffe did when he tried to restore rights to more than 200,000 felons with an executive order. Republicans successfully challenged him in the state Supreme Court.

Youngkin spokesperson Macaulay Porter also issued a statement Tuesday night:

“We will continue to protect parents’ fundamental right to make decisions with regard to their child’s upbringing, education and care.”

Several schools in Hampton Roads have updated their mask guidance, many of which echo existing rules to have students and staff remained masked up on school property at least for the remainder of this week.

In late December, Chesapeake School Board members reversed a previous decision to keep masks optional in schools.

In a 5-1 vote on Dec. 31, the board voted to amend the motion made earlier in the month which made masks, testing and vaccines optional for students starting Jan. 3. Masks are currently mandatory in Chesapeake schools aligning with the state health commissioner’s public health order.

A Chesapeake Public Schools spokesperson said the division was aware of the lawsuit and will be “filing an appropriate response.”

Castillo said that the parents sued the board as well over “the concern is that the executive order is going to give them incorrect guidance into believing they can ignore (state law) and remove the universal masking policy.”

The Chesapeake School Board’s next regularly scheduled meeting is Monday, January 24. On Tuesday night, Chesapeake Public Schools announced it would hold a special school board meeting on Thursday, Jan. 20. It will be held at 5 p.m. in the multipurpose room at the School Administration Building, 312 Cedar Road.

The meeting will allow the school board to “review current COVID-19 data, discuss Governor Youngkin’s recent Executive Orders, and to take action, if any, in response to recent developments,” according to a special meeting notice.