When Tasha Nelson’s 10-year-old son, Jack, heard on the radio that Virginia Gov. Glenn Youngkin would end the statewide school mask mandate—a move that dozens of other states have taken in recent weeks—he turned to his mom with tears in his eyes.
“Does that mean I can’t go to school anymore?” he asked.
Like hundreds of other Virginia children with medical conditions or disabilities, Jack, who has cystic fibrosis, is at an increased risk of becoming very sick if he is exposed to COVID-19. When Youngkin’s mask-optional policy went into effect on Jan. 24, his parents had to decide whether to risk sending him to school, where unmasked children could transmit the virus, or keep him home, where he could fall behind academically. Nelson felt trapped by the decision—to choose her son’s health or his education. Instead, she chose to fight.
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Within weeks, Nelson joined forces with a small group of advocates, including more than a dozen other parents of students with disabilities, and a team of lawyers, who together are mounting a legal challenge against the governor.
On Feb. 1, they filed a lawsuit in U.S. District Court claiming that Youngkin’s mask-optional executive order is a direct violation of disabled students’ right to access public education. By no longer allowing individual schools to institute mask mandates based on student needs, they argue that the order segregates students with disabilities from their peers and denies them access to an equal education—and therefore violates federal laws, including the Americans with Disabilities Act (ADA).
“The ADA protects the rights of students with disabilities to access their schools to get equal opportunities to their education, to be educated with their non-disabled peers as much as possible,” says Kaitlin Banner, the deputy legal director at Washington Lawyers’ Committee. “It’s a federal law that all states and every school has to follow.”
The legal question at stake in this suit becomes even more important this week, as top Democratic officials across the country relax mask mandates and other COVID-19 protection protocols. On Feb. 7, a bipartisan group of governors, including Arkansas Gov. Asa Hutchinson and New Jersey Gov. Phil Murphy, met with President Joe Biden to demand that public policy “move beyond the pandemic.”
The Virginia lawsuit, which explicitly names Gov. Youngkin as a defendant, could fundamentally shape policymakers’ attempts to rescind COVID-19 protection measures as the initial Omicron wave begins to subside.
The legal battle over mask mandates
In recent months, parents in Texas, South Carolina and Iowa have filed several lawsuits similar to the Virginia parents’ case. The other groups of parents have also argued that eliminating mask mandates violates the ADA, but judges so far have ruled inconsistently.
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In Texas, the conservative 5th Circuit temporarily restored a ban on school mask mandates until after the court issues a final ruling, while the 4th Circuit recently denied South Carolina’s request to ban mask mandates in schools. The Virginia case stands apart in that the lawsuit is filed against the Governor’s executive order, rather than state law, says Eve Hill, a lawyer with the firm Brown Goldstein & Levy.
“We’re not suing a legislative act,” Hill says. “We’re challenging something the Governor did directly, so I think we have an even stronger case than in some of the other states.” Parents in other states where face covering mandates are banned will likely look to Virginia for a precedent-setting decision.
Eden Heilman, the ACLU of Virginia’s legal director, says it’s difficult to make broad predictions about the legality of bans on mask mandates, since “each case is so specific as to what’s happening in that state.” South Carolina’s mask mandate ban, for example, was part of a budget provision, not an executive order like in Virginia. South Carolina Governor Henry McMaster and Attorney General Alan Wilson, both Republicans, were later dismissed from the lawsuit after committing to not enforce the ban.
In Virginia, Gov. Youngkin and his team expressed a willingness to “use every tool in their toolkit to enforce the mask mandate ban,” Heilman says. Virginia’s Lieutenant Governor Winsome Sears hinted in an interview on Fox News that Youngkin may consider withholding funds from school districts that do not comply with his executive order.
“There are certain combinations of monies that we send to the state, to the local school boards and he could withhold some of that and he could possibly, if the law allows, even give the parents the ability to decide what schools the children should attend,” Sears said when asked how the state could force districts to comply. Florida Gov. Ron DeSantis used this tactic, withholding funding from eight school districts that required face coverings. The money was returned once the districts complied with Florida law.
Two additional lawsuits in Virginia—one brought by parents in Chesapeake and the other by a group of school districts—also challenge Youngkin’s executive order, but do so under state law and the Virginia constitution instead of federal statutes. On Monday, the Virginia Supreme Court dismissed the Chesapeake parents’ lawsuit due to a technicality, though the judges made clear they did not rule on the legality of the case, potentially leaving the door open for future litigation.
Read More: School Masking Mandates Are Going to Court. Here’s Why the Issue Is So Complicated
Lawyers from the ACLU of Virginia, the Washington Lawyers’ Committee, Brown Goldstein & Levy, the disAbility Law Center of Virginia, and Arnold & Porter, who are representing the 12 parents in the most recent Virginia case, say they believe they have a better shot at forcing states to allow mask mandates because they are arguing that the ban discriminates against people with disabilities—and therefore violates federal law, possibly giving them more ground in court.
The powerful politics of fed-up parents
For Youngkin, the self-proclaimed “political outsider” who won his November election in part by appealing to parents disenchanted with COVID-19 school closures, the mask mandate reversal represents a significant part of his political agenda. Since late January, the Governors of New Jersey, Delaware, Connecticut, Oregon, California, New York and Illinois—some of the bluest states—have followed suit, in part to combat the Republican talking point that Democrats are out of touch on masking and other COVID-19 protection protocols. Even as COVID-19 has continued to sicken tens of thousands of Americans nationwide, they have broadly reduced masking restrictions.
In January, over 93,000 children aged 0-17 were reported to have COVID-19 in Virginia. Youngkin has stood by his executive order.
Macaulay Porter, a Youngkin spokesperson, wrote in a statement that Youngkin “will never stop fighting for parents’ ability to choose what is best for their children,” but did not answer TIME’s specific questions about protecting school-age children with disabilities. “More voices, including from the scientific and medical community, call into question the efficacy behind a universal mask mandate for children,” Porter wrote. “This is about what’s best for their kid’s health and who can best make that decision.”
The Centers for Disease Control and Prevention and the American Academy of Pediatrics recommend universal masking in schools, along with other pandemic measures, such as keeping three feet of physical distance, to reduce the spread of COVID-19. Youngkin’s executive order claims the CDC advice is outdated, only referring to the stronger delta variant, and that asking children to wear masks correctly for an entire school day presents challenges.
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Roughly half of Virginia school districts are currently complying with Gov. Youngkin’s order, per a Washington Post analysis. Some districts are sending unmasked students home with suspensions, drawing ire from the Governor’s office. “History will not look fondly upon them for taking these decisions to tell children who want to be in school that they can’t be in school,” Youngkin says about suspending students for not wearing masks. “I think that these students should be allowed in the classroom, I’m disappointed that they’re not.”
What’s best for the kids
For the Virginia parents of students with disabilities, Youngkin’s silence about their children’s challenges speaks volumes. Their children have disabilities such as cancer, cystic fibrosis, asthma, Down syndrome, lung conditions, organ and blood stem cell transplants, and weakened immune systems, according to the lawsuit. All of those health issues are high risk categories for becoming seriously ill, the CDC says.
“I think it’s a great idea that we give parents choices, but to whose detriment are we doing that?” says Kimberly Crawley, whose 13-year-old son Isaac has a respiratory disability and is more prone to serious complications from COVID-19. “The Governor is completely ignoring us.”
Nelson, whose doctors have said it would be unsafe to send her son to in-person classrooms around unmasked students, sees the fight as bigger than her family and bigger than Virginia; it’s a matter of civil rights. “People with disabilities matter—they shouldn’t be discounted,” she says.
“The only way that we’re going to move past the pervasive ableism in this country is to continue speaking up and speaking out,” she adds, “saying I insist that you absolutely do not prevent my son from experiencing his full rights under the law.”