Seven of Virginia’s largest school districts filed a lawsuit against Gov. Glenn Youngkin (R) challenging his executive order that makes wearing masks optional in public schools.
The executive order, signed on Youngkin’s first day in office, went into effect Monday, seeking to “empower Virginia parents in their child’s education and upbringing by allowing parents to make decisions on whether their child wears a mask in school.” It does not ban the use of masks, but rather leaves the decision up to parents — a sentiment the governor campaigned on heavily.
The order has pitted much the Commonwealth’s education bureaucratic establishment — Democrat-run school boards and teachers’ unions — against an administration that came to Richmond in part to move beyond the draconian coronavirus policies enacted by the previous one.
The plaintiffs, led by the Commonwealth’s most-populous Fairfax County, represent over 350,000 students.
“We are disappointed that these school boards are ignoring parents’ rights,” Youngkin spokesperson Macaulay Porter told Breitbart News. “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.”
The lawsuit comes as Virginians are as divided as ever on coronavirus policy, with many realizing the effects of mask-wearing and remote learning is, by many health metrics, much more detrimental to children than the virus itself.
Indeed, according to the Virginia Chapter of the American Academy of Pediatrics, school-aged children “have experienced a major disruption in their lives, including disruptions to academic structure, participation in activities, peer interactions, lifestyle, and overall physical and emotional health” due to the coronavirus policies.
The report explained that of pediatric providers, 98 percent reported increased anxiety among patients, 95 percent reported an increase in depression, and “even more concerning” is the 58 percent increase in suicidal ideation among children and adolescents.
“We are disappointed that some are still not listening to parents who want to protect children’s health and wellbeing,” Porter told Breitbart News. “Data shows that constant mask wearing can have harmful side effects on some of our children and who better to recognize those side effects than their parents.”
But the lawsuit alleges that the executive order violates both the constitutional authority of school boards and a state law passed last year instructing local governmental bodies to follow federal coronavirus guidance. The Centers for Disease Control and Prevention (CDC) still recommends masking children above the age of two, despite children being at relatively low risk for the virus.
“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,” the school boards said in a joint press release.
The Monday press release also said that “today’s action is not politically motivated,” and signaled that the “seven school divisions would welcome the opportunity to collaborate with the governor to ensure the safety and welfare of all students.”
The school boards are asking the court for an immediate injunction that would bar the enforcement of the executive order, claiming it violates Article 8, Section 7 of the Virginia Constitution, which states, “the supervision of schools in each school division shall be vested in a school board.” A state law was also passed last year that required school districts to adhere to federal health guidance to the “maximum extent practicable.”
But former Virginia Deputy Attorney General J. Kennerly Davis, Jr., who is not involved with the litigation or the Youngkin administration, told Breitbart News that those two provisions are not enough to overturn Youngkin’s order.
As for the law requiring “maximum extent practicable” adherence to CDC guidance, Davis said “masking proponents think this is their key to victory — practicable. I think this will come down to practicable and this is not a question of intent.”
“Universally accepted synonyms for ‘practicable’ include ‘realistic,’ ‘reasonable,’ ‘sensible,'” he began, explaining that the law neither mandates masking, nor requires “unqualified adherence to the CDC.”
When the law took effect, school boards themselves did not take it to be a mandate, Davis said. Rather, it took an executive order from former Gov. Ralph Northam (D) to mandate the masking — one which Youngkin’s order is effectively reversing and one which the school boards now suing the Youngkin administration happily complied with.
“CDC guidance itself is not legally binding,” he continued. “And the CDC from the get-go has been, and over the time of the pandemic, has been riddled with inconsistencies, conflicts, and confusion. There’s a growing data out that studies that show that children frequently don’t wear masks correctly, even when they’re told to. And if they did wear masks, most types of masks are not effective. And and there’s growing scientific evidence that long term masking can be harmful — physically harmful, emotionally harmful to children,” he said citing Dr. Marty Makary of Johns Hopkins.
“Among ‘defiant maskers,’ there is this refusal to recognize growing evidence of the harm,” he concluded, saying adherence to masking in light of the evidence would not be reasonable practicable.
Aside from the “practicable” argument, Davis explained that the supervisory authority given to school boards is also not enough to overturn Youngkin’s order.
“The proponents of masking in Fairfax and elsewhere, they rely on this heavily to say, ‘Well, we have authority to supervise the public schools in our district, and this is what we’ve decided as supervisors,'” Davis said. “But, of course, the grant of that authority is not a blank check. Each board must exercise its supervisory authority in full compliance with any and all applicable laws. I mean, they couldn’t resegregate the schools, they couldn’t take any action contrary to to law and say, ‘Well, we’re supervising it.'”
Davis explained to Breitbart News that the grant of supervisory authority is merely a general grant of power that must be matched against a specific provision in the Virginia Code, cited by the Youngkin order, saying “a parent has a fundamental right to make decisions concerning the upbringing, education and care of the parents child.”
“Everything else being equal,” he said, “specific provisions in certain laws trump general provisions in other laws.”
The parental rights section of the code, Davis said, is part of the Code called “Rules of Construction,” meaning that all provisions in that section must comply with the parental rights provision. In other words, the supervisory authority of school boards can only be exercised in legal compliance with the guarantee of parental rights to raise their own children.
But when considering the executive order, Davis said the “liberal press” mischaracterizes it. “They described the Youngkin order saying it ‘allows parents to opt out of the school board’s mask mandate,” he said. “But the Youngkin order doesn’t allow parents to do it. He’s not giving them something they don’t have. His executive order is recognizing a fundamental constitutional right that the parent have that’s recognized in the parental rights provision of the code as well as the Bill of Rights in the Virginia Constitution, and the Unites States Constitution, and ultimately in the second paragraph of the Declaration of Independence.” [Bold added].
“A big part of this dispute,” he said, “and it covers all the subject areas that are in contention: critical race theory, pornographic school materials in school libraries, gender fluidity ideology/ indoctrination, and masking — it all goes to parental rights and the nature of those rights. And therefore: is the school board in charge, period? Or is the school board as a collection of elected officials accountable to parents and also responsible as elected officials recognize and respect the retained rights of the parents as citizens, and their children as citizens?”
Citing Article 1, Section 2, of the Virginia Constitution’s Bill of Rights, Davis said that “all power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them.”
Davis explained that the U.S. Supreme Court has set precedent in favor of parents’ decision making power when it comes to their child’s education.
In Pierce v. Society of Sisters (1925), the Supreme Court struck down an Oregon statute requiring all children to attend public schools only because it “unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control,” Davis said.
It also added, “famously and wonderfully,” according to Davis, that “the child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” [Emphasis added].
And whether a child is a “mere creature of the state” is exactly what is at issue, Davis said.
Calling Karl Marx and Antonio Gramsci “founding fathers” of the current state of far-left school boards in the United States, Davis told Breitbart News, “That’s what this has been about from the beginning, when Marx said that the traditional family was the foundation for capitalism and had to be brought down. And in the early part of the 20th century, Italian communist Antonio Gramsci — a real nasty piece of work — said that the revolution could best be advanced by achieving cultural hegemony. That is, undermining, displacing, and replacing traditional informal and formal institutions of society.”
Calling teachers’ unions “left-wing cartels,” Davis pointed to a recent statement from the Chicago Teachers Union saying, “We fight for your children like they are our own, because when we teach, they are,” and an example of how the government workers believe children belong to the state rather than the family.
“This is a big issue, where you have the teachers unions, and unaccountable, bureaucracies colliding,” he said. “The administrative state colliding with parents and civil society.”
Citing a recent Rasmussen poll, Davis pointed out that “29 percent of self-identified Democrats said that the government should be able to confiscate the children of the unvaccinated.”
In addition, the lawsuit is asking the court to enjoin Youngkin’s ability to enforce his executive order by “withholding any funding, service, or other resource from any or all of the School Boards.” The governor has said he will use every resource at his disposal to enforce the order, and has not ruled out pulling funding from districts that do not comply.
“School divisions need to continue to preserve their authority to protect and serve all students, including our most vulnerable,” the joint statement asserted.
But Youngkin has been going on radio to make his case.
On Monday morning, Youngkin went on conservative radio host Hugh Hewitt’s show and criticized the Loudoun County School Board — the district that was the hotbed of political activity during his election — saying “they do not respect parents.”
According to the Post, some Loudoun County parents demonstrated at schools against the mask mandate Monday. At one Purcellville middle school, some parents were handing out doughnuts to students who refused to wear masks — something which parent Heather West called “Donuts for the Defiant.”
Other demonstrations took place at other schools, with parents shouting “free your faces.” But the problems came once the students entered the school. Very swiftly, they were isolated and kept in a separate room, where they would remain the entire day unless they decided to wear a mask.
In another Monday interview with WRVA radio, Youngkin said, “When you’re pressing forward with an agenda that cuts across what has been happening in Virginia, where we have not been looking after parents’ rights, we have not been standing up for our kids, then, you know what, we’re going to have some pushback. … This is what Virginians sent me here to do.”
Commenting on another lawsuit against the masking order from Chesapeake parents, he said it was “ironic” that they “are mad because central government isn’t telling them what to do.”
“The Governor’s Executive Order is solidly supported by the law, and by science,” Davis said in a recent statement. “The objections raised by opponents are supported by neither the law nor science… Virginia law clearly supports the parental opt-out provision at the heart of the Governor’s Executive Order. The applicable statute requires the government to recognize that ‘a parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.’”
“We encourage students and parents to communicate any reports of disciplinary action, separation, or expulsion to helpeducation@governor.virginia.gov,” Porter concluded.
The plaintiff school boards are in Alexandria City, Arlington County, Richmond, Fairfax County, Falls Church, Hampton City and Prince William County.
The case is Alexandria City School Board, et al. v. Glenn A. Youngkin, in the Circuit Court for the County of Arlington, Virginia.
Breccan F. Thies is a reporter for Breitbart News. You can follow him on Twitter @BreccanFThies.