Delegate Tim Anderson Commentary: A Legal Analysis of Executive Order Two – Masks in Schools

by Tim Anderson


I have received many requests from you regarding how Gov Youngkin’s order applies to school masking requirements.

For private schools – the answer is easy. Private schools were ordered by the former health commissioner to require masking in schools. That order is rescinded. Private schools should rely on the parental choice option and create a policy allowing mask wearing to be optional.

Public schools: This is more complicated. Last year a law was passed (SB1303) that requires public schools (only public – not private) to be open for in-person learning 5 days weeks while requires “ii) provide such in-person instruction in a manner in which it 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.”

The CDC’s current recommendation related to masking is: 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.

SB1303 expires August 1, 2022 – so after that day – parents without doubt have the option of sending children to schools without a mask. Between now and then – I think elected school boards are going to have to make decisions – and then parents on the other side of that decision will have to bring a court fight. That will take time – Courts do not move fast. So with the 5 months we have left of school this year – I would be surprised for the Supreme Court to provide binding guidance that would apply statewide.

Final answer: For this current year: I think public school boards will decide this answer – and there won’t be enough time to get the fights through the courts.

For next public school year: Parents will decide.
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Del Tim Anderson is an attorney who lives and works in the Virginia Beach area. He was elected to the House of Delegates in 2021.

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