In a lawsuit that saw the administration of Gov. Glenn Youngkin (R) join forces with parents against the school district, Loudoun County Circuit Court Judge James P. Fisher decided to grant an emergency injunction in the mandate after weighing arguments from parent plaintiffs' counsel, Attorney General Jason Miyares's (R) office, and LCSB.
“Today is a great day for Virginia's parents and kids,” Youngkin said in a press release. “Not only did we pass a bipartisan bill empowering parents to opt-out of school mask mandates, but also the Loudoun Circuit Court reaffirmed parents' rights to have a say in their child's health, education, care, and wellbeing.
“We're excited that Loudoun has reached this decision,” it continued. “Importantly, the court ordered that any disciplinary action against students who were punished for following their parents' decision to remove their mask will be expunged from their records.”
Fisher, upon taking his seat to preside, told the gallery — well-attended by parents and children — that they were welcome to remove masks if they felt comfortable doing so. He then heard arguments from LCSB asking for a stay in the case until a later date, justifying in part that the LCSB needed time to “know more” about a new law signed by Youngkin earlier in the afternoon that also ended the mask mandate — but which did not fully go into effect until March 1.
Fisher asked LCSB if they intended to comply with the new law or challenge it in court, but the lawyer said they need time to get the “lay of the land.”
Lead counsel on the case for the parent plaintiffs, Jones Day lawyer James Burnham, said in response that “They [LCSB] won't even tell you if they're willing to follow state law. … It is outrageous to suggest we should hold this over to see if the school board is going to defy state law.” Burnham previously clerked for Supreme Court Justice Neil Gorsuch and served in the Trump Justice Department.
Fisher ultimately denied stay, saying that given the “ongoing nature of harm” alleged by the parents, he does not “have a comfort level that this will resolve itself.” He proceeded to hear arguments for and against an immediate injunction on the mask mandate.
The lawsuit covered the efficacy and detrimental health effects of masks, the fundamental right of parents in Virginia to direct the upbringing of their children, the governor's authority to rescind a mask mandate — by way of Youngkin's Executive Order (EO) — and the relative power of school boards in Virginia.
The school board has been “defying state law aggressively, openly, and proudly since January 24,” Burnham said, explaining that their imposition of mask mandates as a safety measure to stop the spread of the coronavirus is “not consistent with reality” and amounts to a “harmful medical request.”
The attorney for the AG's office, Virginia Solicitor General Andrew Ferguson, agreed, saying that “serious prejudice [is] being inflicted on children” that imposes “daily irreparable harm.” Ferguson previously clerked for Supreme Court Justice Clarence Thomas.
Indeed, U.S. Surgeon General Vivek Murthy pointed out that “depression and anxiety symptoms for youth around the world had doubled during the pandemic and that clinical data also revealed that ‘suspected suicide attempts were 51% higher for adolescent girls and 4% higher for adolescent boys compared to the same time period in early 2019.'”
“‘Pandemic-related measures … made it harder to recognize signs of child abuse, mental health concerns, and other challenges' children were facing given the ‘reduced in-person interactions among children, friends, social supports, and professionals such as teachers [and] school counselors,'” Murthy's study stated.
Similarly, as the lawsuit points out, “There is a growing consensus that mask mandates in schools may harm early childhood development, especially kids whose lingual or social development is atypical. … Studies have additionally shown that masks may harm children's ability to form solid social and emotional ties with friends, teachers, and other members of their community — particularly for children whose development is atypical.”
“The burdens of the pandemic fall almost entirely on the youngest in our society,” and masks are a well-documented burden with “seemingly little scientific evidence” that they reduce the spread of the coronavirus, Burnham said.
In the plea for an immediate injunction, Burnham emphasized that “money is not going to make that better later.”
Despite the ample and growing evidence that masks are detrimental to children, LCSB implemented seemingly punitive measures on students who refused to wear masks in school, such as suspension, “segregation,” and public shaming from students and teachers.
Parental rights were at play as well.
Virginian parents have a fundamental right to direct the upbringing of their children, and EO 2 sought to “empower Virginia parents in their child's education and upbringing by allowing parents to make decisions on whether their child wears a mask in school.”
In order to infringe on this right, a government must satisfy a test under “strict scrutiny” — a high legal bar — which Burnham argued in part would mean the “board must substantiate that masking actually stops the spread of COVID-19,” to which he said the “evidence doesn't exist.”
Also at issue was Virginia law S.B. 1303, a law passed by the Virginia General Assembly during the pandemic “in response to the recalcitrance of school boards like Loudoun County,” to require school boards to “offer in-person instruction to each student enrolled in the local school division in a public elementary and secondary school for at least the minimum number of required instructional hours.”
While requiring in-person learning, this law also directed school boards to follow guidance from the Centers for Disease Control and Prevention (CDC) to the “maximum extent practicable.” That standard, argued Burnham, was used by LCSB as a catch-all that would allow the CDC to “trump everything in the Virginia code.”
Not only that, but the school board's policy is actually not in compliance with even the CDC. The CDC, for example, does not require masks, but rather “recommends” them. But even more to the point, the CDC recommends “positive reinforcement” for minors who are being asked to mask. LCSB, however, suspends maskless students, locks them in gymnasiums, and quarantines them with other children,
In one instance, Ferguson detailed maskless students being “bullied and harassed” by students and staff as they were locked in a room so that masked students could laugh and take pictures of them.
One would think, Ferguson added, that the “school would treat them like children, not pawns in a political scheme.”
It is “unfair and unconscionable,” he continued, explaining that children are at the lowest risk for negative effects from the virus.
S.B. 1303 did not allow the CDC to act as a “wild buffalo that goes rampaging through the Virginia code,” Burnham continued. “The CDC does not have plenary power to govern the state of Virginia.”
Furthermore, “school boards in Virginia are not independent sovereigns” that can act in contravention of the governor's authority and the oversight power of the General Assembly, he continued.
LCSB's punitive measures used to impose the mask mandate also violate S.B. 1303 because it guarantees the right to in-person schooling, but the LCSB is suspending and segregating students based on whether they wear masks.
In defense of the mask mandate, LCSB argued that masking has been the “paradigm in place since the beginning of the school year” and is therefore the “status quo.”
Burnham, however, pointed out that masking for children was not in fact the status quo, as there was no other part of their life in which they were required to wear a mask, except for school. Furthermore, even if it were the status quo, it does not diminish the authority of parents to allow their children not to make or the governor to reverse the mandate when weighing public health options in an EO.
The lawyers pointed out that at least 21 students are currently suspended for not wearing a mask, asking Fisher for an immediate order so that they could return to school. One such 13-year-old student and her family filed an amicus brief in today's case with the support of the American Constitutional Rights Union, represented by the Schaerr Jaffe law firm. The family's affidavit was among the evidence Ferguson presented to the judge.
District Superintendent Scott Ziegler said in an announcement:
We ask our families to help us maintain a healthy and safe learning environment by staying vigilant and taking precautions that protect against the transmission of COVID-19, including outside our school buildings. We will continue to keep our families and community informed of any future changes to our mitigation strategies.
The case is Barnett v. Loudoun County School Board, No. 22-546 in the Circuit Court of Loudoun County, Virginia.
Breccan F. Thies is a reporter for Breitbart News. You can follow him on Twitter @BreccanFThies.