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Federal judge sides with parents of high-risk students in masking lawsuit

A face mask lies on the ground.

On Wednesday, a federal judge in Charlottesville agreed with the families of 12 children that COVID-19 threatens them enough to bar the state from enforcing a law that weakened mask mandates in the children’s schools.

One of Governor Glenn Youngkin’s first moves in office was to weaken school mask mandates, and he issued an executive order that required a parental opt-out from mask mandates, largely defeating the purpose of a requirement. Some parents and administrators quickly challenged that move in court.

Then, the General Assembly passed a law that banned mask mandates this session, which went into effect on March 1st. That took the wind out of the sails of a lawsuit that school boards won an early victory in.

The parents are represented by the ACLU of Virginia, the Washington Lawyers Committee for Civil Rights and Urban Affairs, the disAbility Law Center of Virginia, and two private law firms: Brown Goldstein & Levy and Arnold & Porter. The children in the case were between preschool and 11th grade, including a 10-year-old with cystic fibrosis and a 13-year-old diagnosed with Down Syndrome.

Kaitlin Banner, deputy legal director at the Washington Lawyers Committee, said the pandemic has been especially hard on the parents of children who are a higher risk for COVID-19.

This decision I think is a really important recognition of the fact that those students with disabilities have the same rights as every other student to attend school in person, to get back to being with their friends and being in the classroom… and that schools need the flexibility and communities need the flexibility to make reasonable accommodations so that they can do that,” she said.

The case is ongoing. But the preliminary injunction issued by US District Court Judge Norman K. Moon means that these schools can figure out ways to accommodate the at-risk students without fear of enforcement of Executive Order 2 and Senate Bill 739.

“For some of our clients that may look like masking just of the students who are seated around them, for some it may look like masking in their classroom,” Banner said. “We expect that those conversations will happen in the schools and the parents will work together to come up with a solution that works for everybody.”

Attorney General Jason Miyares said in a tweet that Moon's opinion underlined that the law was in effect in Virginia, and that a similar Executive Order by Governor Glenn Youngkin was too.

And in a statement Miyares said the ruling “affirms that Governor Youngkin’s Executive Order 2 and Senate Bill 739 is the law of Virginia and parents have the right to make choices for their children.”

The students in the lawsuit are in some of the state’s largest school divisions. Moon noted that this case is not a class action in his accompanying opinion to his order.

“The twelve plaintiffs in this case have no legal right to ask the Court to deviate from that state law in any schools in Virginia (much less school districts) their children do not attend, or indeed even those areas of their schools in which Plaintiffs' children do not frequent. In other words, only those schools Plaintiffs attend or would attend are directly impacted by this Court's decision,” he wrote.

But the ACLU of Virginia’s Executive Director told the Associated Press that the ruling could be a blueprint for other children who are especially threatened by COVID-19.

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.

Jahd Khalil is a reporter and producer in Richmond.