Virginia Senate Bill Would Allow Parents To Decide on Student Masks

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By Stefanie Jackson – As Gov. Glenn Youngkin’s administration faces legal challenges by several Virginia school districts over his executive order allowing parents to exempt their children from school mask mandates, the Virginia General Assembly is working to pass legislation that essentially would codify the executive order, making it more difficult to challenge in court.

“It’s time to put kids first and get back to normal,” Youngkin said in a press release Wednesday after the Virginia Senate passed SB 739 with bipartisan support in a vote of 21-17.

The bill appears to build on previous legislation, SB 1303, which became state law in 2021, requiring Virginia schools to offer students in-person learning.

Senate Bill 739 addresses three issues related to in-person instruction in Virginia’s public schools:

  • It defines “in-person instruction” as instruction that occurs with teachers and students meeting in person. If only the teacher is present in the classroom to conduct online learning, it is not “in-person instruction.”
  • It requires that school boards offer in-person instruction to every student “for at least the minimum number of required annual instructional hours,” which in Virginia is 180 days or 990 hours. (The requirement does not include the 10 unscheduled remote learning days each school is permitted by law, which are used in special circumstances such as the closing of school buildings for inclement weather.)
  • It allows “the parent of any child enrolled in a public elementary or secondary school, or in any school-based early childhood care and education program” to “elect for such child to not wear a mask while on school property.”

The bill states that parents may allow their children to not wear masks in school regardless of any other law, regulation, rule, or policy implemented by schools or any other state or local authorities.

The bill affirms Gov. Youngkin’s executive order two, which states that parents do not need to provide a reason for their decision to allow their children to not wear masks in school; the bill adds that neither may parents be required to show documentation of their children’s health or education status.

Furthermore, Senate Bill 739 closes a loophole in executive order two, which allowed schools to discipline students who didn’t wear masks in school. The bill states, “No student shall suffer any adverse disciplinary or academic consequences as a result of this parental election.”

This third part of the bill, which addresses the issue of students wearing masks in school, was an amendment adopted by the state senate in a 29-9 vote on Tuesday.

The vote followed a widely reported Supreme Court of Virginia decision on Monday to dismiss a lawsuit against Youngkin, which was filed by Chesapeake parents who contended that the governor does not have the authority to reverse school mask mandates.

The lawsuit was dismissed on a technicality; the court ruled the type of relief the parents sought was not applicable, in part because it was not clearly proved that the governor had neglected to fulfill any of his official duties.

The court offered no opinion on the legality of executive order two.

However, seven school boards that sued the governor over the executive order scored a temporary victory last week when a circuit court judge put the executive order on hold in the respective school districts until a decision could be reached in the lawsuit.

But “school boards who are attacking their own students are stunningly detached from reality,” Youngkin said, perhaps referring to school boards who have disciplined students for not wearing masks in school at their parents’ discretion.

He noted that “in the last week, we have seen Democrat-led states like Oregon, Connecticut, New Jersey and Delaware move away from mask mandates in schools. I am pleased that there is bipartisan support for doing the same in Virginia.”

The House of Delegates has not yet voted on the bill.

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