Virginia judge weighs governor's power to lift mask mandate

FILE - Virginia Gov. Glenn Youngkin, center, signs executive orders in the Governors conference room as Lt. Gov. Winsome Earle-Sears, left, Suzanne Youngkin, Second from left, Attorney General Jason Miyares, second from right, and Secretary of the Commonwealth, Kay Cole James, right, look on at the Capitol Saturday Jan. 15, 2022, in Richmond, Va. A judge is scheduled to hear arguments over whether local school boards or Youngkin have the final say on whether students must wear masks at school. Seven school boards from across the state filed a lawsuit last week seeking to block an executive order issued by Youngkin from taking effect.(AP Photo/Steve Helber, File) (Steve Helber, Copyright 2022 The Associated Press. All rights reserved)

ARLINGTON, Va. – Virginia Gov. Glenn Youngkin has broad power to issue executive orders overturning mask mandates in schools, lawyers from the state Attorney General’s Office argued Wednesday, while lawyers for local school boards argued that the governor’s action usurps their authority.

An Arlington County judge heard arguments from both sides in a lawsuit the school boards filed against Youngkin. She said she would issue a ruling soon.

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In the meantime, schools and parents are left with uncertainty. School boards across the state have refused to implement an executive order from the new Republican governor that not only overturns a statewide mask mandate, but also bars local jurisdictions from imposing a mandate on students.

At Wednesday's hearing, Deputy Attorney General Steven Popps argued that Youngkin is entitled to issue executive orders responding to the coronavirus pandemic just as his predecessor, Democrat Ralph Northam, did when he imposed a statewide school mask mandate.

“It should not matter whose name is on the executive order,” Popps said.

But John Cafferky, a lawyer for Alexandria Public Schools — one of seven school boards that jointly filed the lawsuit opposing Youngkin's order — said Northam's actions were justified because he was acting to preserve public health.

Youngkin's order, on the other hand, endangers public health, he argued. He said Youngkin is using powers designed to curtail public health crises to impose his personal philosophy that parents should decide whether their children wear masks.

“The personal-choice rationale comes at the expense of schoolwide protection,” Cafferky said.

Cafferky also cited a state law that requires schools to adhere to guidelines from the Centers for Disease Control and Prevention to the extent practicable, and said those guidelines recommend universal masking.

Popps, though, countered that no school board is able to adhere to every single CDC guideline. The CDC also has called for vaccinating all children age 5 and older, but no school board has seen fit to issue such a requirement, he said.

Circuit Court Judge Louise DiMatteo took the arguments under advisement after Wednesday's hearing, but said she is cognizant of the need for a swift decision. Both sides have asked for an injunction that would likely apply statewide, either barring implementation of Youngkin's order or requiring local school boards to implement it, depending on which way she rules.

The lawsuit is one of several across the state related to the mask mandate and Youngkin's executive order. Cases are also pending in Loudoun County and in front of the Virginia Supreme Court, but Wednesday's hearing was the first to go before a judge.