From today’s Richmond Times-Dispatch

Gov. Glenn Youngkin says he will “consider all options” to preserve an opt-out for parents from local school mask mandates amid pushback from some school districts and some Democrats who say state law requires Virginia to follow federal guidance that recommends masks in schools.

Carl Tobias, a law professor of the University of Richmond, says that whoever brings a challenge to the governor’s order, the dispute has a likely destination: “to the courts.”

On Saturday, shortly after he took office as Virginia’s 74th governor, Youngkin issued nine executive orders, one of which ends the statewide COVID-19 mask mandate in K-12 schools beginning Jan. 24. The order specified that parents have the right to exempt their children from such mandates of local school systems.

“We said all along that we were going to stand up for parents,” Youngkin said in an interview with “Fox News Sunday.”

“In Virginia, it is clear under law that parents have a fundamental right to make decisions for their children’s upbringing, their education and their care,” Youngkin said. “And so we are providing parents an opt-out. We’re providing them the ability to make the right decision for their child with regard to their child’s well-being.

“We are going to use all the authority that I have to consider all options to protect that right,” he said.

Richmond Schools Superintendent Jason Kamras had tweeted Saturday afternoon: “@RPS_Schools will maintain its 100% mask mandate for students, staff, and visitors.”

Henrico County Public Schools issued a statement Sunday saying masks are still required, while Chesterfield County Public Schools said an update regarding masks will be sent out on Jan. 23, the day before Youngkin’s executive order takes effect.

The Henrico district said in its statement: “The HCPS school board and administration respect that parents make decisions for their families; however, division leaders must make decisions for the collective safety of nearly 49,000 students and 10,000 employees and fulfill our responsibility to provide in-person instruction.”

The city of Alexandria’s school system said in a statement Sunday that it “will continue to abide by the health and safety guidelines of the Centers for Disease Control and Prevention and the Alexandria Health Department and continue to require all individuals to wear masks that cover the nose and mouth in ACPS schools, facilities and buses.”

Fairfax County’s school system said it is reviewing the “operational implications” of Youngkin’s order but that it also plans to continue to require students and staff to wear masks. Arlington County’s public schools said in a statement Saturday evening that its mask requirement is unchanged.

Like those Northern Virginia school systems, Del. Sally Hudson, D-Charlottesville, asserted in a tweet Sunday that state law requires the state to follow CDC guidance, which recommends universal indoor masking by all students ages 2 years and older, staff, teachers and visitors to K-12 schools, regardless of vaccination status.

Sen. Louise Lucas, D-Portsmouth, went to Twitter to push back. “Cry harder @GovernorVA! Your executive orders do not change LAWS we passed,” she wrote. “Better learn how government works, we elect Governors not dictators.”

Youngkin has said he is vaccinated and got a booster shot, but that he opposes mandates. Another of his executive orders rescinds the COVID vaccination requirement for state workers.

On Aug. 10, the Chesterfield School Board approved a mask mandate, and the Hanover County School Board voted against requiring students or staff to wear masks. Henrico requires students and staff to wear masks while indoors.

Two days later, Gov. Ralph Northam mandated that all K-12 schools in the state require masks for students and teachers, less than a week after saying that a state law already rendered them compulsory. The order from state Health Commissioner Dr. Norman Oliver overruled decisions from several school boards — including in Hanover — rendering masks optional.

Youngkin says in his executive order that Oliver’s August order is out of date, partly because it “explicitly relates to the delta variant and not the omicron variant, which results in less severe illness.” Youngkin’s order also notes that children ages 5 and older are now eligible to get vaccinated.

Youngkin’s order also cites a section of state law under parents’ rights that says: “A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.”

The governor’s order says no parent who opts their child out of a local school mask mandate “shall be required to provide a reason or make any certification concerning their child’s health or education.”

The order claims the CDC “has found no statistically significant link between mandatory masking for students and reduced transmission of COVID-19.” But the administration seems to be missing the larger point — according to CDC data, mask mandates do have a noticeable effect.

To make its claim, the administration cited an analysis of state-level community mask mandates from March to December 2020. (The report addressed mandates for communities, not schools, which were largely virtual at the time.)

In 2020, 73.6% of U.S. counties had a mask mandate. In the counties that had mandates, the growth of case and death rates slowed between 0.5% and 2% compared to counties that did not have mandates.

But what mandates didn’t do is decrease the rate of cases or deaths. “Daily case and death growth rates before implementation of mask mandates were not statistically different from the reference period.” This is the line the administration used to defend its executive order.

In other words, the case rate and death rate didn’t get better with mask mandates. But in counties without mandates, they got worse.

So what does this mean for the effect mask mandates had in 2020? Mandates had a small effect, and a statistically noticeable one, but not a dramatic effect.

It’s also worth pointing out that this study was conducted during the original strain of the virus, which is less contagious than omicron, and largely doesn’t focus on schools.

The CDC says a layered approach of multiple prevention strategies decreases the risk of transmission. These strategies include vaccination, consistent and correct use of masking for people not fully vaccinated, distancing, screening tests to identify cases, improved ventilation, handwashing, staying home when sick, contact tracing and routine cleaning.

Before Oliver issued the Aug. 12 order instituting the statewide mandate, the Northam administration had insisted there was no need for executive action since a state law Northam signed last spring requiring schools to offer in-person instruction directs school districts to follow CDC guidelines to the “maximum extent practicable.”

But state Sens. Siobhan Dunnavant, R-Henrico, and Chap Petersen, D-Fairfax City, who sponsored the bill, took issue in August with Northam’s characterization of their Senate Bill 1303, saying they did not mean it to be a mask mandate.

The bill “advises that in order for schools to be open this year they follow CDC guidelines to the maximum extent practicable,” Dunnavant said in an August statement. “Translated — open schools and be adaptable to our children because in-person education is the most important thing. Mandates aren’t adaptable.”

Petersen said at the time: “The entire purpose of the bill was to give local school boards flexibility in adopting mitigation strategies.”

Tobias, the UR professor, said Sunday that he respects the bill’s co-sponsors, but “their intent doesn’t carry the day,” though they could file a brief to make their assertions part of a court record.

Tobias said that somewhere in the state, a local school system or a parent is likely to go to court and argue that the state law that says Virginia must follow CDC guidelines to the “maximum extent practicable” supersedes the new governor’s executive order.

Tobias said that whichever way a circuit court rules, it would likely be appealed to the Court of Appeals, which could lead to a resolution in the Supreme Court of Virginia.