The VA Supreme Court Rejects a Challenge to Executive Order 2
The VA Supreme Court Rejects a Challenge to Executive Order 2
Will school boards double down?
Attorney General Jason Miyares announced that the Supreme Court of Virginia has rejected Chesapeake’s challenge of Executive Order 2. The Supreme Court’s order can be found here.
Page 2 of the order reads,
Additionally, the only authority the petitions assert as imposing a duty on the School Board is Senate Bill 1303, 2021 Acts Ch. 456 (Spec. Sess. I) (“SB 1303”). In relevant part, SB 1303 provides that each school board shall (i) adopt, implement, and, when appropriate, update specific parameters for the provision of in-person instruction and (ii) provide such in-person instruction in a manner in which it adheres, to the maximum extent practicable, to any currently applicable mitigation strategies for early childhood care and education programs and elementary and secondary schools to reduce the transmission of COVID-19 that have been provided by the federal Centers for Disease Control and Prevention. By allowing school boards to follow the Centers for Disease Control and Prevention’s recommended COVID-19 mitigation strategies “to the maximum extent practicable,” SB 1303 necessarily gives the boards a degree of discretion to modify or even forgo those strategies as they deem appropriate for their individual circumstances. With respect to implementing policies on student masking, that discretion persists even if EO 2’s masking exemption provisions are unlawful. [Emphasis added]
The ruling emphasizes the discretion contained in the language of SB 1303. Some school boards in Virginia recognized this discretion at the start of the 2021-2022 school year and made masks optional in their localities. Then-Governor Ralph Northam did not like that and on August 12, 2021, he announced through his Health Commissioner Norman Oliver, a Virginia statewide mask mandate for schools. He used the Public Health Emergency Order to enact HIS interpretation of SB 1303. Now, the Supreme Court of Virginia has spoken. School boards in Virginia can no longer use SB 1303 as their excuse to mandate that children wear masks. SB 1303 does not mandate mask wearing, but rather allows for discretion in determining mitigation strategies.
I wonder if school board members will walk back their previous statements, or if they will double down.
