Virginia Asks Court to Toss Lawsuit Challenging Ban of School Mask Mandates

Jason Miyares is sworn in as Virginia’s 48th attorney general, in Richmond, Va., on Jan. 15, 2022. (Anna Moneymaker/Getty Images)

Virginia’s new attorney general has asked a court to dismiss a lawsuit brought against Gov. Glenn Youngkin’s executive order banning school mask mandates.

Attorney General Jason Miyares, who, like Youngkin, is a Republican, told the Virginia Supreme Court that the parents who sued lack standing and didn’t adequately state their case.

“The Court should dismiss the petition for three independent reasons,” Miyares said in a filing (pdf).

“First, petitioners lack standing because they have failed to identify any cognizable injury of any kind, or to explain how any such injury is particularized to them. Second, the petition seeks relief that is unavailable in this Court’s original jurisdiction, as neither mandamus nor prohibition is a substitute for the injunctive relief petitioners seek from this Court. Finally, even if the petitioners had standing and their petition were procedurally proper, this Court should reject their claim on the merits because they have failed to identify a ‘clear right ... to the relief sought.’”

The parents cited a state law, which took effect last year, that ordered school districts to offer in-person learning.

The law states: “For the purposes of this act, 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 [CDC].”

The suit states that because the federal agency currently recommends universal masking in schools, Youngkin’s order, which enables parents to decide whether their children wear masks or not, is “in direct conflict” with the law.

Miyares disagreed, telling the court that the measure directs schools to follow CDC guidelines.

“Neither it nor these guidelines impose a ’mask mandate,'” he said.

“And even if the CDC issued something other than recommendations, Senate Bill 1303 would not require rigid adherence to every CDC promulgation; instead, the bill explicitly provides that in-person instruction should be provided in a manner which adheres ‘to the maximum extent practicable, to any currently applicable mitigation strategies’ provided by the CDC for childcare and education programs.”

Miyares said the request to the court was aimed at protecting “the fundamental rights of parents to direct the upbringing, care, and education of their children,” adding, “Governor Youngkin had every power to issue the executive order and with our filing, we again affirm that parents matter.”