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Judge rules mask mandate in seven Virginia school districts may remain in place for now

<i>Al Drago/Bloomberg/Getty Images</i><br/>Glenn Youngkin
Bloomberg via Getty Images
Al Drago/Bloomberg/Getty Images
Glenn Youngkin

By Virginia Langmaid and Devan Cole, CNN

Mask mandates in seven Virginia school districts may remain in place after a judge on Friday granted a temporary restraining order against Republican Gov. Glenn Youngkin’s executive order on optional masking in schools.

The school boards of Alexandria City, Arlington County, Richmond City, Fairfax County, Falls Church City, Hampton City and Prince William County filed a lawsuit late last month challenging Youngkin’s order, which he issued in mid-January on his first day as governor. The order took effect on January 24.

The school boards had requested a temporary injunction to temporarily block enforcement of the executive order against the school boards, pending a final ruling on the case. Virginia’s lawyers later requested the judge issue a temporary injunction ordering the school boards to comply with the executive order while awaiting a final ruling.

The state has said it intends to appeal the judge’s decision.

In granting the restraining order for the schools, Judge Louise M. DiMatteo specified that the decision on the restraining order was made “without deciding whether selective masking by individuals within a school setting is better or worse that universal masking requirements.”

“To take on the validity of the Governor’s policy would require more than a difference of opinion at this stage and the Court has taken no evidence on these issues,” she wrote.

“The efficacy of the Governor’s school mask policy contained in EO2 does not bear upon whether he has the authority to issue it. The single issue before the Court is whether the Governor, via his emergency powers, can override the decision of local school boards delegated to them under SB 1303,” DiMatteo wrote, adding: “On this pivotal point, the Court concludes that the Governor cannot.”

DiMatteo also cited the “irreparable harm” of rolling back masking policies in place since the start of the school year, the importance of maintaining current policies at this time and the benefit to the public interest of granting the injunction against the executive order.

Youngkin’s executive order allowed for parents and guardians to “elect for their children not to be subject to any mask mandate in effect at the child’s school or educational program.” In August, Youngkin’s predecessor, Democrat Ralph Northam, had announced that masks would be required in schools as part of a public health emergency order.

The lawsuit from the school districts argued the mask-optional order was unconstitutional and violated a state law which says schools must follow US Centers for Disease Control and Prevention guidelines “to the maximum extent practicable” until August 1, 2022. The CDC recommends all students, staff and school visitors wear masks indoors regardless of their vaccination status.

John Cafferky, an attorney for the school boards, had argued at an earlier hearing that it should be up to the boards to decide whether to implement protective measures like universal masking, not the governor. But Virginia Deputy Attorney General Steven Popps argued that Youngkin has “broad” authority as governor to issue the executive order.

In a joint statement, the school boards said they are “pleased” with the granted injunction.

“While the legal process on this matter continues, today’s ruling preserves the existing policies and practices in Virginia school divisions, which includes masking requirements,” the statement read.

Victoria LaCivita, director of communications for Virginia Attorney General Jason Miyares, said in a statement to CNN that they are “disappointed that the trial court did not fully agree with our interpretation of the law, and we are preparing to appeal today’s ruling.”

Macaulay Porter, a spokesperson for Youngkin, told CNN that the governor “will never stop fighting for parents’ ability to choose what is best for their children.”

“We are going to appeal, this is just the first step in the judicial process.”

The school districts’ suit was the second such challenge brought last month, with a group of parents in the state also asking Virginia’s Supreme Court to block Youngkin’s order.

This story has been updated with additional details Friday.

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