Gov. Ralph Northam answered questions from reporters about how the state will and won’t enforce a requirement that people wear masks indoors. (May 28, 2020 — Ned Oliver/Virginia Mercury)
When Gov. Ralph Northam reiterated last week that he expects Virginia school systems to follow public health guidelines and require masks indoors, he suggested state law gives them no choice.
“I don’t know that it can be any simpler than that,” Northam said at a news conference. “It’s the law of the Commonwealth of Virginia. And I expect our school districts to follow the law.”
The response from school boards across the state hasn’t been simple.
Some localities, including Hanover County, Fauquier County and the city of Chesapeake, have said they’re sticking with mask-optional policies, according to local media reports, despite the Northam administration’s warnings they could be opening themselves to legal liability if students get sick.
Large school systems in heavily Democratic Northern Virginia were some of the first to announce new mask rules in accordance with new guidelines from the Centers for Disease Control.
Some rural counties that lean conservative, like Powhatan County and Rockingham County, are doing the same, indicating they have no choice but to adhere to a law the General Assembly passed earlier this year that required schools to reopen for in-person learning but also instructed them to follow CDC guidelines “to the maximum extent practicable.”
Southwest Virginia’s Franklin County settled on an in-between approach, deciding it will have a mask rule while allowing anyone to claim a medical or religious exemption without proof.
“While the vast majority of school divisions have complied with the law, it’s clear there are a few that need additional clarification,” Northam spokeswoman Alena Yarmosky said Wednesday via email. “We plan to provide that shortly, and fully expect all school districts will do the right thing.”
The exact impact of that law was still becoming clear Wednesday.
The Virginia High School League, the association that oversees public-school sports competition, said it determined the law doesn’t apply to extracurricular activities, meaning it will be up to local officials to decide what rules student-athletes and spectators must follow.
“School Boards are not bound by law to follow CDC guidelines for non-instructional activities,” the VHSL said in a news release.
Margaret Riley, a University of Virginia School of Law professor who specializes in health law, said the state legislation seems to set “a floor that school districts must adhere to,” though it may give localities limited wiggle room.
“But not the kind that I have heard posed (where essentially school districts get to decide on their own initiative),” Riley said in an email. “It would be more like a situation where the CDC guidelines required a certain kind of mask, but that mask was for some reason in limited supply. The question that’s still open of course, is how the state will enforce it.”
Deliberately ignoring the law, she said, could pose legal problems for local officials if someone harmed by COVID-19 can convince a court that virus mitigation measures could have prevented that harm.
Late last month, the CDC updated its guidance to call for universal masking for students, staff and visitors in school buildings, regardless of vaccination status.
The rise of the more infectious delta variant has added to the uncertainty surrounding the start of the school year. A student who attended a “Back to School Bash” in Carroll County tested positive for the virus, forcing the school system to ask attendees to watch for symptoms, according to WSET.
Hopewell schools have seen at least 40 cases already, according to the Petersburg Progress-Index, and all 53 fourth-graders are quarantined in only the second week back for a Richmond charter school, according to the Richmond Times-Dispatch
With children under 12 still ineligible for the vaccines, just 14.3 percent of Virginia youth under 18 have been fully vaccinated, according to Virginia Department of Health data. About half of 16- and 17-year-olds have been fully vaccinated. Less than 40 percent of 12- to 15-year-olds are fully vaccinated.
State officials have said children between the ages of 5 and 11 could become eligible for vaccination next month, according to the Richmond Times-Dispatch.
Though Northam hasn’t issued a new statewide mandate requiring masks in schools, his office says the General Assembly has effectively already done that via legislation passed in March with broad, bipartisan support.
Del. Schuyler VanValkenburg, D-Henrico, who helped craft the legislation, said the reference to CDC guidelines was a nod to the pandemic’s unpredictability, without giving school districts total freedom to pick and choose which rules to follow.
“The general gist of it was we’re going to open schools but we don’t know what the fall’s going to bring,” VanValkenburg, a Henrico County civics teacher, said in an interview. “And we’ve seen a whole bunch of places that have taken a heavy-handed approach and regretted that.”
Arkansas Gov. Asa Hutchinson, a Republican, recently said he regretted signing a GOP-championed bill to ban state and local mask mandates, saying he now feels local school districts should be able to make their own masking decisions. Some Democratic governors have ordered statewide mask mandates. Some Republican-led states, most notably Texas and Florida, have banned mask mandates, but some school leaders have signaled they’ll defy those bans and require masks anyway.
On Wednesday, California became the first state to announce teachers must be vaccinated or face regular testing, a step Northam has not taken in Virginia. The governor’s office noted Virginia prioritized K-12 workers during its vaccine rollout and said it is “encouraging local governments to issue their own vaccine requirements.”
“The governor is always considering a range of options to get Virginians vaccinated,” Yarmosky said.
Federal Education Secretary Miguel Cardona said Wednesday that he supports vaccine mandates for teachers and school staff.
VanValkenburg said deciding simply whether schools would be open or closed was never the “full conversation,” and safety was always an overriding factor.
“It’s no good to have the schools open if three-fourths of the kids can’t be in them because they’re either sick or quarantining,” he said.
School superintendents have an obligation to follow Virginia law, he said, and school boards that direct them to do otherwise are inviting legal trouble.
“When kids inevitably get sick or God forbid worse, you’re opening yourself up to a lot of liability,” he said. “And I’m sure some of them are going to have conversations with their insurance companies over the next couple weeks that will probably not be pleasant.”
Republicans have said Northam is essentially calling for a mask mandate without saying so directly.
In a recent radio appearance on WRVA, Sen. Siobhan Dunnavant, R-Henrico, an OB-GYN who sponsored the school reopening bill, said the law was meant to be “permissible” and accused Northam of “malfeasance of leadership.”
“’Several weeks ago, he told school divisions you may decide for yourself. Many of them decided,” Dunnavant said. “And Thursday he drops the bomb that this law may be a problem for them and they should check with their legal counsel. So here kids are literally returning to school in some districts… and all of a sudden this is a mired-down legal issue.”
Republican gubernatorial candidate Glenn Youngkin has also faulted Northam’s move, saying the governor has created a de facto mask mandate and that it should be left to parents to decide.
Youngkin’s opponent, former Gov. Terry McAuliffe, has recently leaned into pro-vaccine messaging, announcing he’ll require his paid campaign staff to be fully vaccinated and calling for Virginia health systems to impose the same rule for their employees.
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