The debate – and legal battles – over school masking policies in Virginia is still as fraught as ever, weeks after Gov. Glenn Youngkin issued an executive order giving parents the power to choose to mask or unmask their children in schools.

On Wednesday, the General Assembly dove into the fray. The Senate passed a bill that would essentially codify the executive order and give parents the right to make decisions about masks, over and above school board policies.

Meanwhile, the legal system is whirring away. One of the four lawsuits in the case was dismissed by the Virginia Supreme Court on Monday, but three others — one in support of the executive order, and two opposed — are continuing. In one case, a judge issued an injunction banning the enforcement of the executive order in the school divisions that brought the complaint.

It’s all a lot to take in, especially if you have basic questions about how the political and legal maneuvering might play out on the ground in Northern Virginia schools.

What’s going on with legislation in the General Assembly, and when might it take effect? 

The big news is that Republicans and three Democrats in the state Senate approved a bill that giving parents the sole authority to decide whether or not to mask their children in schools, meaning that school boards across the state will no longer be able to impose mask requirements, regardless of the local pandemic situation. The measure is expected to pass the GOP-controlled House of Delegates quickly, and Youngkin has said he will sign it into law.

On Tuesday, Sen. Chap Petersen, a Fairfax Democrat, added the parent choice masking amendment to a bill from Henrico Republican Siobhan Dunnavant that requires school districts to provide full in-person instruction.

The Senate voted to amend the bill to include Petersen’s language, on a bipartisan basis, with some Democrats supporting the move. The bill in its entirety — including the mask-optional amendment — passed the state Senate on Wednesday. A House education committee will consider a companion version of the same bill on Friday, and the measure is expected to win easy passage in the Republican-controlled House.

The Youngkin administration hailed the news from the legislature.

“In the last week, we have seen Democrat-led states like Oregon, Connecticut, New Jersey, and Delaware move away from universal mask mandates in schools,” Youngkin said in a statement. “I am pleased that there is bipartisan support for doing the same in Virginia.”

He also took aim at local school boards that have been pushing back on the idea of exclusive parent choice in school masking.

“This vote also shows that school boards who are attacking their own students are stunningly detached from reality,” Youngkin tweeted. “It’s time to put kids first and get back to normal.”

Supporters of the legislation — and of Youngkin’s executive order — feel requiring masking in schools is detrimental to child development and mental health. They say the pandemic situation has changed, given the availability of vaccines and the relative mildness of the omicron variant. And they point to a lack of clear scientific consensus about the degree to which masks limit transmission in school settings.

Critics note that other states, including those cited by Youngkin, have chosen to end their school mask mandates but preserved the flexibility of local schools to maintain masking if they feel the local public health situation warrants it. Speaking in a House Education Committee hearing on Wednesday, representatives for the Virginia School Boards Association and the Virginia Education Association, the teacher’s union, said they don’t support statewide mandates of any kind. Those groups would rather allow local schools to chart their own course, particularly in the event of a new variant.

It’s not yet clear , however, when the parent-choice clause might take effect as a state law. Youngkin could attach an emergency clause to the legislation, which would mean it would take effect as soon as he signs it; but that process requires approval from both chambers of the Assembly, per the Virginia constitution. Without an emergency clause, the law wouldn’t take effect until this summer.

What’s the latest on the lawsuits? 

At the beginning of the week, there were four lawsuits concerned with the executive order on masking. Now, following a Virginia Supreme Court ruling, there are three.

The commonwealth’s high court dismissed a lawsuit brought by a group of parents in Chesapeake, Va., on technical grounds. The legal complaint argued that the Youngkin administration — and the Chesapeake school board, which has chosen to no longer require masks in school buildings — was afoul of the language of a law which required schools to adhere to CDC guidance as much as possible. The Court said the state law “gives the [school] boards a degree of discretion” to shape their compliance with public health guidance according to local realities.

Beyond that, the Court declined to weigh in on the order or the arguments against it.

“By this dismissal, we offer no opinion on the legality of EO 2 or any other issue pertaining to petitioners’ claims,” reads a footnote in the opinion.

Meanwhile, a judge in Arlington ruled in favor of a group of seven Virginia school boards, who brought a lawsuit challenging the executive order on constitutional grounds as well as under Virginia state law (specifically, the law directing schools to follow CDC guidance). The school boards argued that the Virginia Constitution vests the power to make decisions like public health strategies in local school boards, not with the Governor. Judge Louise DiMatteo, who had previously disclosed to both legal sides that her spouse is a public school teacher, granted a temporary injunction to the seven school boards, which prevents any enforcement actions against the school divisions bringing the complaint for not complying with the executive order.

There is one lawsuit so far in support of the executive order. It’s being brought by a group of parents in Loudoun County, who are pushing back against the schools’ decision not to allow parents to choose to mask or unmask their children, a right promised to them under the executive order. Earlier this week, a judge accepted the Youngkin administration’s request to join the lawsuit on the side of the parents. A hearing in the case is expected next week.

The final complaint in the bunch is based on federal civil rights law, not state law. It was brought by a group of Virginia parents on behalf of their children, who are all severely immunocompromised or have disabilities that make them extremely vulnerable to serious illness if they were to contract COVID-19. The plaintiffs, who are being represented in part by the ACLU, say that taking away the ability of school districts to set masking policy means the schools will no longer be able to make reasonable accommodations for these students to receive a fair and equitable education, which is required under federal disability rights law. On Thursday night, lawyers requested a temporary injunction and a restraining order against the Youngkin mask-optional order from taking effect, for school districts across the commonwealth.

Assuming the General Assembly approves the new parent choice masking legislation, what could happen to the lawsuits?

If parent choice in school masking becomes state law in Virginia, it could mean the end of the road for some legal arguments over the executive order — including those relying on the state law directing schools to follow CDC guidance, which still recommends masks in school settings.

Debates over the constitutional argument about the authority of the governor over local school boards “may still go forward…but the masking issue would be taken out of it,” if the legislation becomes law, Loudoun schools superintendent Scott Ziegler told the county school board on Tuesday.

But the end of those state-level disputes wouldn’t apply to the federal civil rights complaint, according to Kaitlin Banner, the deputy legal director at the Washington Lawyers’ Committee For Civil Rights and Urban Affairs, and one of the attorneys who filed the suit.

“State law cannot get rid of the protections of federal civil rights law,” she says, noting historic moments in the Civil Rights Movement and school desegregation fights when states unsuccessfully pushed back on federal statutes.

So regardless of what happens in state courts, the way the argument plays out in the federal system will go a long way to determining whether Youngkin’s executive order — and the prospective new state law empowering parents to make choices about masking their children — will ultimately stand, or if the power to impose or lift mask mandates rests with local school boards on civil rights grounds.

How are school communities in Northern Virginia reacting?

There are vocal groups of parents in Northern Virginia on both sides of the issue.

Some parents feel strongly they should be able to make choices on behalf of their children, and hailed the legislative news out of the General Assembly.

“At an end, the mask wars are,” tweeted Ian Prior, the executive director of Fight For Schools, the Loudoun County anti-critical race theory group responsible for recall campaigns against a number of school board members.

Others blamed local school officials for failing to make clear plans to remove masks in schools earlier.

“The failure of local leaders and school boards to take any action whatsoever to develop mask offramps [sic] is one of the main impetuses behind these legislative developments,” tweeted the Fairfax County Parents Association, an organization that grew out of the reopen schools movement in the county.

Some local officials, however, have expressed support for coming up with so-called off-ramps for masking in schools; Ziegler, with Loudoun County schools, presented a plan this week to lift the school mask mandates students based on sustained lower coronavirus transmission benchmarks in the county.

Other parents believe schools should retain the power to adjust to local pandemic conditions.

“Our state government should not prevent our local school districts from protecting students and teachers from Covid-19,” says a press release from a statewide coalition of parents called Virginia Parents For Safe & Equitable Schools. “Our state government should not restrict school districts from responding to health crises, following federal public health guidance, providing safe, continuous, in-person instruction, and accommodating students with disabilities.”

And while the legislative process and legal arguments grind on, the community divide over masking in schools is having day-to-day consequences for students. Some students have been suspended and not allowed into school buildings for refusing to wear masks. And Banner, the attorney on the disability rights challenge, says some parent plaintiffs in the lawsuit who live in districts that are making masks optional have stopped sending their vulnerable children to school.

This story has been updated with new information about the federal disability rights case.