Update: An Arlington judge has granted a temporary restraining order against Gov. Glenn Youngkin’s mask-optional executive order — a major win for the several Northern Virginia school boards that filed the suit, seeking to keep their mask mandates in place.

In the opinion issued Friday, Judge Louise M. DiMatteo ruled that Youngkin does not have the power to override the decisions of local school boards to enforce mask mandates, citing the Virginia Constitution and a state law requiring schools remain open and comply with CDC guidance. DiMatteo had previously disclosed that her spouse is a public school teacher in Arlington, but neither side in court objected with her continuing with the case, The Washington Post reports.  But conservative groups, including the Fairfax GOP, expressed outrage over the relationship on social media.

Youngkin spokesperson Macaulay Porter issued a statement, pledging a plan to appeal.

“The governor will never stop fighting for parents’ ability to choose what is best for their children,” reads the statement. “This is about what’s best for their kid’s health and who can best make that decision.”

Original:

Seven school boards in Virginia have filed suit in an attempt to keep their mask mandates in place. The legal action was announced on the day Virginia Gov. Glenn Youngkin’s executive order on school masking goes into effect. The school districts include Alexandria, Arlington, Fairfax, Falls Church, and Prince William in Northern Virginia, as well as Richmond and Hampton.

Youngkin was elected on a pledge to allow parents to choose whether their children wear masks at school, and he made good on the promise with a first-day executive order, allowing any parent or guardian to opt out of mask mandates in their school districts.

In the lawsuit, the school boards say the governor does not have the authority to impose such an order, and that doing so violates the Virginia constitution, Virginia law, and inflicts “direct, immediate, and irremediable” harms.

“Both the constitution and state law, we believe, supersede the governor’s executive order,” said Babur Lateef, Chairman-At-Large of the Prince William County School Board, in an interview with DCist.

“The goal is not really to make a political statement here, it’s more for the continued operation of the school system with the least amount of disruption, with the highest priority being in-person learning.”

According to the lawsuit, harms posed by the governor’s mask-optional order include “the increased likelihood of severe illness or death by a student, school staff member, or member of either one’s families,” as well as “the loss of in-person learning by students” who must quarantine after being exposed to unmasked students, or who must stay home due to staffing shortages.

This is the second lawsuit against Youngkin over the masking order; last week a group of 13 parents in Chesapeake, Va. sued the governor, making similar arguments to those put forth by the seven school boards filing suit.

In an email to DCist, Youngkin spokesperson Macaulay Porter wrote that the school boards filing suit were acting against parents’ 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.”

In the meantime, students headed to school on Monday across Virginia in a confusing world: the governor says it’s up to parents to decide whether children wear masks, but many school districts say masks are still required. In an attempt to add some clarity, Youngkin on Friday released new school health guidelines. Youngkin said in a press release that he was confident his order would withstand scrutiny by the courts. But while awaiting rulings, he said, “I urge all parents to listen to their principal, and trust the legal process.”

The new lawsuit argues that Youngkin’s executive order violates Article VIII, Section 7 of the Constitution of Virginia, which states, “The supervision of schools in each school division shall be vested in a school board, to be composed of members selected in the manner, for the term, possessing the qualifications, and to the number provided by law.”

“The constitution-makers set up a school board as essentially an independent entity,” University of Virginia law professor Rich Schragger told DCist last week. This feature of the Virginia constitution was added in 1971, in response to Massive Resistance, which included policies implemented on the state level during the 1950s to prevent local school districts from integrating, in defiance of the U.S. Supreme Court. The idea, in 1971, was to empower local school boards and prevent a repeat of Massive Resistance.

The lawsuit also argues that the executive order violates S.B. 1303, a bipartisan law that went into effect in March 2021, that requires schools to provide in-person education and requires schools to follow CDC health guidelines.

According to the law, in-person instruction must be conducted “in a manner in which it adheres, to the maximum extent practicable, to any currently applicable mitigation strategies” that have been provided by the CDC to reduce COVID transmission in schools.

The CDC currently recommends masking in schools for all individuals over 2 years old, regardless of vaccination status.

Youngkin’s executive order questions the public health benefit of masking in schools. Mask mandates “have proven ineffective and impractical,” the order states, noting that children often wear masks incorrectly or wear less effective cloth masks. N95 or KN95 masks, which the CDC now recommends, “are very tight and uncomfortable, and may be poorly tolerated by children,” says the order.

In addition to “inconsistent health benefits,” mask mandates have also “inflicted notable harm,” the executive order says. That harm, according to the order, includes inhibiting communication, delaying language development and social and emotional skills, causing breathing difficulty, increasing feelings of isolation, and exacerbating mental health issues.

According to the CDC and many researchers, masking in schools can greatly reduce COVID-19 infections. CDC data from the fall of 2021 found that in counties where school districts had no mask mandates, the start of school brought in increase in pediatric cases twice as large as in counties where school mask mandates were in effect. Another CDC study, in Arizona, showed a 3.5 increase in COVID cases in a non-mask county, versus a county with a school mask mandate. Some have questioned the CDC’s methodology, but there is a scientific consensus that masking helps reduce transmission of the coronavirus.

The lawsuit was filed in the Arlington County Circuit Court, where the school boards are seeking a temporary injunction to stop the governor’s executive order from being enforced while the case is decided. On Wednesday, a judge granted the plaintiffs’ request for an emergency hearing on the motion for an injunction. The hearing is scheduled for Feb. 2 at 1 p.m.

This story was updated to include the judge’s ruling, and information about the emergency hearing. Margaret Barthel contributed reporting.