VA Circuit Judge on schools mask mandate: ‘It’s about the hierarchy of authority’

February 2, 2022:

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Lawyers for Virginia Gov. Glen Youngkin squared off with attorneys for seven school districts Wednesday afternoon in the fight over mask mandates in schools.

Virginia Deputy Attorney General Steven Popps told Virginia Circuit Court Judge Louise DiMatteo that Youngkin has, “exceptionally broad powers of the Governor to act in an emergency.”

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Popps also said Youngkin’s executive order, which gives parents a choice on whether their kids wear a mask to school, is tame compared to some of his predecessor, former Gov. Ralph Northam’s, emergency orders. “Those orders were far more Draconian than this order.”

Glenn Youngkin, Governor of Virginia, speaks to members of the media.
(Photographer: Al Drago/Bloomberg via Getty Images)

Northam had issued a number of emergency executive orders during the height of the pandemic, including ordering all Virginians to wear a mask in a public place as well as restricting large gatherings, including religious services.

Arguing for the seven school districts in question was John Cafferky, who said the Virginia Constitution “tasks local school boards with the responsibility” to keep school children safe.

Corona virus prevention face mask protection N95 masks and medical surgical masks at home.
(iStock)

Cafferky also pointed to a Virginia statute which says schools need to follow Centers for Disease Control and Prevention (CDC) guidance, which calls for kids to wear masks in school.

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Popps said not a single school board in Virginia is “remotely following all of the CDC’s guidelines,” pointing to CDC guidance that all kids under 5 years old be vaccinated, while none of Virginia’s school districts are mandating the coronavirus vaccine.

“I’m not going to decide who’s right and who’s wrong on masking, this is really about the hierarchy of authority,” said Judge DiMatteo. “This is a question of who has the authority to issue an order and if so, what next?”

School children board a bus.
(iStock)

Judge DiMatteo said she didn’t “intend to take long” and would make a decision in the matter soon.

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The Virginia school districts in question are Fairfax County, Prince William County, Arlington County, Richmond, Falls Church, Hampton City and Alexandria City.

The American Civil Liberties Union (ACLU), which alleges that Youngkin’s recent order is preventing equal education opportunities for students with disabilities, has also filed a suit in federal court against the order.

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