Bolling: More on To Mask or Not to Mask

Several of my Facebook friends have reached out to me with questions about the ongoing mask debate in public schools, and why not, it is all very confusing. So, I thought I would try and provide some additional perspective on this.

There are really two questions here:

1. Does the Governor have the authority to issue an Executive Order that requires local school divisions to do something that is not otherwise required by law?

2. Is this particular Executive Order enforceable, since it appears to conflict with a specific state LAW that was passed by the General Assembly in 2021?

Ultimately, these questions will be addressed in pending lawsuits that have been brought in the judicial system, and that’s a good thing. These issues need to be addressed. My guess is that the Supreme Court will ultimately rule that:

1. A Governor does have the authority to issue an Executive Order of this nature, as long as that Executive Order is consistent with the Governor’s constitutional or statutory powers and is not inconsistent with existing state LAW.

2. The existing state LAW passed by the General Assembly in 2021 is controlling, because an Executive Order cannot unilaterally override a state LAW. If that is the case, we need to understand more about that law, so here goes.

During the 2021 legislative session, the Virginia General Assembly passed a state LAW that required every school system in Virginia to offer in person instruction to every student enrolled in the local school division. As part of this law, and in order to protect public health, the General Assembly required that such in person instruction be provided in a manner that:

“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.”

Like it or not, CDC strategies for mitigation of COVID-19 in public school settings currently includes the following recommendation:

“CDC recommends universal indoor masking by all students (ages 2 years and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status.”

This CDC recommendation, combined with the legislation passed by the General Assembly in 2021, which requires public schools to comply with CDC recommendations, would appear to give local school divisions little latitude in not having a universal masking policy in place. If they fail to do so, they would be in violation of existing state LAW.

If the General Assembly wants to empower local school divisions to exercise their own judgement on whether or not universal masking policies are required, they should repeal this section of the law they approved in 2021.

BTW, my own view of this is that the state should not be dictating to local school divisions what their policy on this should be, one way or the other. I believe that decisions of this nature should be left to local school divisions, but whatever policy we pursue, it needs to be consistent with state LAW. We cannot have Governors trying to override state LAW by Executive order. That is government be executive fiat, and that is not what we are about.

Here’s another interesting fact. Currently, 71 of 133 school districts in Virginia are following the state LAW, not the Governor’s Executive Order. These 71 school divisions instruct 73 percent of the state’s K-12 students.

Also, almost all of the localities that are following the Governor’s Executive Order are localities that voted for President Trump in 2020 and Governor Youngkin in 2021. Why is this important? Because it shows that this has become a political issue, not a policy issue.

Stay tuned for more on this when the Supreme Court addresses the existing lawsuits. We’ll see if my analysis is correct or not. At this point, I have a 50/50 chance of being right.

Also by Bill Bolling: Bolling: To Mask or Not to Mask – Can School Boards Override the Governor? | Bearing Drift.