Hampton schools join lawsuit against Gov. Youngkin’s executive order ending mask mandate

HAMPTON, Va. (WAVY/AP) — Hampton City Schools have joined six other school districts in Virginia challenging the constitutionality of Gov. Glenn Youngkin’s executive order requiring Virginia schools to make masking optional.

That is in addition to a lawsuit from Chesapeake parents.

“The legal action, representing over 350,000 students across the state, defends the right of school boards to enact policy at the local level, including policies that protect the health and wellbeing of all students and staff,” a release announcing the lawsuit from Hampton City Schools says.

Joining Hampton are Alexandria City, Arlington County, City of Richmond, Fairfax County, Falls Church City and Prince William County. They’re also asking for a temporary injunction on Youngkin’s executive order, which would prevent Youngkin from taking action against any district that chooses not to follow the order.

On Monday, some students reporting to class ignored local mandates and went maskless. But there were no reports of major issues or violent confrontations.

Youngkin urged patience and asked parents to listen to their children’s school principals for the time being.

“Listen to a principal today. And I know that there are some school systems that are doing things that are inconsistent with respecting the rights of parents. … Let’s respect it right now and let this legal process play out,” he said in an interview with Richmond radio station WRVA.

More than 7,000 new COVID-19 cases were added Monday in Virginia. That is in addition to the more than 22,000 cases added over the weekend.

Many other school districts across the commonwealth (including in Hampton Roads) have also decided to continue to require masking for student and staff safety as the omicron COVID variant continues its rapid spread. They also cite the need to stay in compliance with Virginia state law, SB 1303, which requires schools to follow current Centers for Disease Control guidance. The CDC currently recommends universal masking.

The suit centers around whether an executive order can unilaterally override local school boards’ authority outlined in Article VIII, § 7 of the Constitution of Virginia, and “whether a governor can, through executive order, without legislative action by the Virginia General Assembly, reverse a lawfully-adopted statute.”

“Without today’s action, school boards are placed in a legally untenable position — faced with an executive order that is in conflict with the constitution and state law,” the release states. “Today’s action is not politically motivated. These seven school divisions would welcome the opportunity to collaborate with the governor to ensure the safety and welfare of all students.”

Hampton’s school board chair would not agree to an interview with 10 On Your Side, but Dr. Richard Mason offered the following statement: 

“Our Hampton School Board is committed to providing all of our students a safe, in-person learning environment and as such, upheld the Board’s support of the HCS 2021-2022 Instruction and Health Mitigation Plan at its January 19, 2022, School Board meeting. When the governor issued Executive Order 2 on January 15, 2022, our Board had concerns as to local control and who has the authority to make policy and decisions for local school divisions. Due to this, and the importance of creating and maintaining healthy learning environments, our Board has joined six other school divisions to file a Complaint for Declaratory and Injunctive Relief. This legal action will determine whether locally-elected school boards will maintain the authority and responsibility conferred upon them by the Constitution of Virginia over supervision of the public schools in their respective communities.”

School boards such as Williamsburg-James City County Schools’ have said they eventually want to go back to no masking, but virus and hospitalization levels need to go back down before then. Virginia’s still seeing record levels of COVID hospitalizations — including ventilator usage — and health care systems have pleaded with the public to get vaccinated to prevent getting severely sick from COVID.

“With COVID-19 transmission rates high, our hospitals at crisis level, and the continued recommendation of health experts to retain universal mask-wearing for the time being, this is simply not the time to remove this critical component of layered health and safety mitigation strategies. School divisions need to continue to preserve their authority to protect and serve all our students, including our most vulnerable, who need these mitigation measures perhaps more than anyone to be able to continue to access in-person instruction.”

13 Chesapeake parents also filed a lawsuit against Youngkin and Chesapeake school leaders over the executive order. Chesapeake opted to make masks optional starting, January 24.

Attorney Kevin Martingayle represents those parents who are taking the governor to court for basically the same reason these seven school boards have.

“What we are seeing is a power grab by the governor,” Martingayle said.

The lawsuit from the seven school districts says the decision is in violation of Virginia’s Constitution.

Martingayle has a similar complaint.

“Article 8 of the Constitution of Virginia divides the responsibility of education between the General Assembly and the local school boards,” he said. “There is virtually no role for the governor other than appointing some people to boards.” 

The court actions allege Governor Youngkin doesn’t have the authority to issue an executive order that undermines General Assembly mask mandates in K-12 schools.

“No Governor may suspend or cancel laws,” said Martingayle. “Senate Bill 1303 became law. It was a bipartisan compromise that provides for children to attend school in-person and for all the schools’ systems to follow the guidance to put out by the CDC.”  

If the courts uphold that then it would appear Governor Youngkin would have to change the law through the General Assembly. 

“He can currently contact legislators and urge them to change the existing law and repeal it. He can also contact CDC and urge them to change their guidance otherwise there is no active role for the governor in this field.”  

Both court actions question the authority Governor Youngkin has seized. He gets it because his directive now to parents is to “listen to a principal” on what to do until the court issues are resolved.