Virginia appears set to ban school mask mandates. How soon will it happen?

As part of her argument that Republican Gov. Glenn Youngkin and his more liberal counterparts in states like New Jersey are taking two different approaches to lifting mask mandates in schools, Virginia House Minority Leader Eileen Filler-Corn said other states aren’t easing their rules until March.

“If we move forward with this bill with an emergency clause, you’re talking about putting this into effect in a number of weeks,” said Filler-Corn, D-Fairfax, referring to anti-mask mandate legislation she said would endanger children, teachers and administrators.

Del. Amanda Batten, R-James City, one of the bill’s sponsors, pointed out that March is only a few weeks away.

“If we’re looking at March as a magic date, we’re pretty close to March right now,” Batten said. “Even with an emergency clause, if all that were to happen, we would probably be lining up with March. Much as the other states are.”

As a handful of Democrats in the Virginia Senate joined with Republicans Wednesday in a 21-17 vote to end mandatory student masking in schools, questions remained over how and when the proposed law might go into effect. 

Senate set to vote on bill ending mask mandates in Virginia schools

Youngkin has indicated he’s eager to sign it, but it still needs to pass the Republican-led House of Delegates before it goes to him. House Speaker Todd Gilbert, R-Shenandoah, said Wednesday he plans to get the bill to Youngkin as soon as possible because “kids can’t wait any longer.”

With Youngkin’s executive order against mask mandates in limbo due to legal challenges, the legislative ban could potentially end compulsory school masking before the courts have had the final say on whether Youngkin’s action is legal.

Though most new laws go into effect on July 1 by default, Youngkin could recommend an emergency clause that would make the law take effect immediately after he signs it. But both narrowly divided legislative chambers would need to approve that step. This week, rules experts have been poring over parliamentary procedures to figure out if that would take a simple majority vote or the four-fifths votes required of most emergency legislation.

Both the House and the Senate clerks, the General Assembly’s experts on legislative rules, confirmed to the Mercury that, under current practice, an emergency clause sent down by Youngkin could pass with simple majority votes. 

That suggests the masks provision could easily clear the House, where Republicans have a 52-48 majority. And if only one of the three Senate Democrats who voted for the bill Wednesday want the law to take effect immediately — a strong possibility given the vocal anti-mandate stance of Sen. Chap Petersen, D-Fairfax — emergency language could also clear the Senate, where Democrats have a 21-19 majority with Lt. Gov. Winsome Sears breaking ties.

“We don’t have a lot of tools to push back,” Del. Marcus Simon, D-Fairfax, said Wednesday. “That’s life in the minority.”

In a similar situation in the fall of 2020, Democrats used their superior numbers in both chambers to pass emergency protections for Virginians facing eviction when then-Gov. Ralph Northam added an emergency clause. Both chambers approved it by majority vote, over Republican opposition.

Democrats voiced strong objections to the anti-mask mandate bill in both chambers this week. Unlike other states moving away from mask mandates, they note, both Youngkin’s order and the pending bill prevent local school boards from making masks mandatory. That could create problems, they say, should another COVID-19 surge happen.

Groups representing Virginia school boards, school superintendents and teachers have also raised that concern while voicing opposition to the bill.

Stacy Haney, a lobbyist for the Virginia School Boards Association, said her organization opposes the state making masks mandatory and opposes the state making masks optional.

“This is a decision that should be made by our local school boards,” Haney told the House Education Committee.”If there’s anything that is certain in this pandemic, it is that it will change again. But if you pass this substitute, you tie our hands and we can’t change with the pandemic.”

The Virginia Education Association, the state’s largest advocacy group for teachers, and the Virginia Association of School Superintendents also registered their opposition to the bill.

At the same hearing, Youngkin Secretary of Education Aimee Guidera, said “if things get worse,” the state can revisit the mask issue.

“This is not about masks,” Guidera said. “This is about parents’ rights to have judgment. They know their children best.”

Pressed to explain how a masks-optional system would protect immunocompromised students at higher risk from the virus, Guidera said she’s confident principals and parents will work together to protect those students.

No Democrats on the House Education Committee voted for the mask mandate ban, perhaps signaling more unified opposition in their caucus than among the Senate Democrats.

In the Senate, the two Democrats who joined Petersen in support of the bill were Sens. Joe Morrissey, D-Richmond and Lynwood Lewis, D-Accomack.

During a lengthy debate on the Senate floor, Morrissey said he believes masks are effective (though perhaps not as effective as initially thought) and will continue to tell his own children to wear them at school. But he said he thinks all parents should be able to make that choice themselves.

“We are telling parents what to do,” Morrissey said. “And as a legislator, I just don’t believe that I have the audacity to tell them what they can do and they cannot do.”

Other Senate Democrats argued that — just as Youngkin’s executive order did — the bill would strip communities of their power to make their own decisions on masks.

“We will eventually get back to normal. We all want that,’ said Sen. Jennifer McClellan, D-Richmond. “But we have to do it in a way that is safe for everyone. Not a one-size-fits-all approach.”

Sen. Mamie Locke, D-Hampton, said she’s heard a wave of opposition since the mask mandate ban was introduced Tuesday.

“I don’t know about other people,” Locke said,  “but my emails and my text messages and my phone have been inundated with calls from my district of school board members, teachers, saying: ‘Are you people crazy? What is wrong with you?’”

Supporters of the bill said it would bring some measure of peace to communities divided by mask debates and would better reflect newer findings suggesting cloth masks are less effective against the omicron variant.

“The truth here is that the only mitigation that actually works is the vaccine,” said Sen. Siobhan Dunnavant, R-Henrico, the only doctor in the General Assembly.

Petersen, the bill’s Democratic champion,  said his goal is to end “the mask wars” once for all.

“I don’t have a doctorate in medicine,” he said. “But I do have a doctorate in common sense.”