Editors’ Note: Excerpted, with permission, from Bacon’s Rebellion, March 14, 2022, https://www.baconsrebellion.com/wp/
By Dick Hall-Sizemore
Although the issue of school mask mandates is now behind us, it is instructive to examine the legal arguments advanced by Attorney General Jason Miyares in a court case seeking to overturn the mask mandates instituted by the Loudoun County School Board. Not only does Miyares advocate judicial activism and misread statutory law, the breadth of the power he asserts for the governor is breathtaking.
At issue was whether the school board could continue to mandate the wearing of face masks by students despite the provisions of Governor Youngkin’s Executive Order No. Two (EO-2) that students are to have the option of wearing masks in school.
The state circuit courts have divided on this issue. The state Supreme Court dismissed, on technical grounds, a suit by Chesapeake parents challenging EO-2. A group of seven school boards filed suit in Arlington Circuit Court challenging the legality of EO-2. The court there issued a temporary injunction barring the enforcement of the mask-option policy set out in EO-2. The result was just the opposite in Loudoun.
The brief devotes a lot of pages arguing that the mask mandate is “ineffective and impractical.” It cites numerous studies to buttress its argument. Furthermore, it argues that masks are not necessary in schools because “COVID-19 infection and spread in schools is low,” and “the rate of hospitalization among school-age children is similarly low.” Regardless of the merits of those arguments, that is a policy decision for legislatures, not courts, to make. In the past, conservatives such as Miyares claims to be railed about “judicial activism” and complained that “courts should be interpreting, not making, law.”
The school board cited Chapter 456 of the 2021 Acts of Assembly (S.B. 1303) as its primary defense. That law requires school boards to offer in-person instruction to each child enrolled in its schools. It also required each school to:
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 child 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. [emphasis added]
EO-2 acknowledges that “the Centers for Disease Control (CDC) recommends masks,” as does the affidavit filed in the Loudoun circuit court by the Acting Commissioner of Health. However, Miyares’ brief contends, despite the Virginia statute requiring school boards to adhere to any “currently applicable mitigation strategies … that have been provided by” CDC, that the law “does not impose a universal mask mandate.” Miyares is asking the court to ignore the plain language of the statute.
Finally, and most importantly, there is the order itself. There are several ways of interpreting it, but the end results are either nonsense or very concerning as to the insight they provide into the vision that Miyares has of gubernatorial power and authority. A simple interpretation would be that the governor has rescinded the latest executive order and Order of Public Health Emergency regarding the emergency created by COVID-19 and ordered that school boards not require students to wear masks in school.
The governor certainly has the authority to rescind previous executive orders and public health emergency orders. But, by what authority does the governor get to issue an edict that schools cannot require students to wear masks, especially when state law gives school boards supervisory authority over schools and the 2021 legislation requires that masks be used by students? This is an edict that Miyares tells the court the school board has “disobeyed.”
The governor certainly has the authority to rescind previous executive orders and public health emergency orders. But, by what authority does the governor get to issue an edict that schools cannot require students to wear masks, especially when state law gives school boards supervisory authority over schools and the 2021 legislation requires that masks be used by students? This is an edict that Miyares tells the court the school board has “disobeyed.”
Recognizing that the Governor needed some sort of legislative authority to issue such an order, the authors of EO-2 cloaked him, paradoxically, in the protection of that law that conservatives now seem to hate: the Virginia Emergency Services and Disaster Law (VESDL), specifically Sec. 44-146.17 of the Code of Virginia.
One needs to ask, “What is the emergency that is the subject of EO-2?” Miyares’ brief states, “COVID-19 still poses a very real threat to public safety and continues to be an emergency under the VESDL” (p. 16, para. 63). If COVID-19 were really the emergency for which EO-2 was issued, it does not make any sense that the steps ordered by the Governor involved diminishing the use of a measure designed to reduce the transmission of the disease.
Actually, the purpose of EO-2, and the ostensible “emergency,” is stated explicitly in its title and first section: “reaffirming the rights of parents in the upbringing, education, and care of their children.” In the petition to the court to allow the Commonwealth to intervene in the case, Miyares declared, “The Governor has declared EO-2 is a necessary measure to protect public health, safety, and welfare during the COVID-19 emergency, in particular the health and safety of children.”
In EO-2, the Governor states, at the beginning, “Under Virginia law, parents, not the government, have the fundamental right to make decisions concerning the care of their children.” In his brief, Miyares declares that it was in light of this “fundamental right” that “Governor Youngkin invoked his VESDL power to rescind the previous order requiring all students to wear masks” and further ordered schools not to impose such mandates (p. 18, para. 67).
In summary, the “emergency” that caused the Governor to issue EO-2 was that, because their children were required to wear masks to school, the fundamental rights of some parents had been infringed upon and the Governor had a “duty” to protect those rights. Unaddressed are the fundamental rights of those parents who might feel that schools and the Governor have a duty to protect their children, to the extent possible, from the transmission of a deadly disease in schools.
In summary, the “emergency” that caused the Governor to issue EO-2 was that, because their children were required to wear masks to school, the fundamental rights of some parents had been infringed upon and the Governor had a “duty” to protect those rights. Unaddressed are the fundamental rights of those parents who might feel that schools and the Governor have a duty to protect their children, to the extent possible, from the transmission of a deadly disease in schools.
Completely ignored in Miyares’ brief is the statutory definition of the type of emergency under which the Governor is authorized to exercise his extraordinary powers. It strains the borders of credibility to contend that schools requiring their children to wear masks with the intent to decrease the chances that they would transmit or catch a deadly disease infringes upon the rights of parents to the extent it “results or may result in substantial injury or harm … or substantial damage to or loss of property or natural resources.” It seems that, according to Miyares’ argument, an “emergency” is what the Governor says it is.
[Regarding a parent’s right to decide matters pertaining to the education of their children], the Governor expanded upon the law in his statement of it in EO-2. According to that document, “Under Virginia law, parents, not the government, have the fundamental right to make decisions concerning the care of their children.” However the text of the actual law is:
A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.
The statute says that a parent has “a” fundamental right, not “the” fundamental right asserted in the Governor’s rendition of the law. There is a difference. Using “the” lends a sense of exclusivity, ruling out the existence of any other entity having a right to make decisions about the case of a child.
There is no language in the statute excluding the role of the government. Furthermore, the statute says that a parent has “a” fundamental right, not “the” fundamental right asserted in the Governor’s rendition of the law. There is a difference. Using “the” lends a sense of exclusivity, ruling out the existence of any other entity having a right to make decisions about the case of a child.
It is necessary to examine the implications of Miyares’ contention that the governor has the authority to declare an emergency when someone’s rights are being threatened. Under this interpretation, the “emergency” no longer is restricted to its commonly understood, and statutory, meaning. There no longer has to be a credible threat of people being physically injured or killed or of widespread property damage, such as in the case of a hurricane, tornado, flood, ice storm, or pandemic. An ”emergency” becomes something happening that a lot of people are upset about and feel their rights and interests are not being protected and the Governor “concludes that existing legal procedures fail to protect those rights and interests.”
Under the Miyares approach, the following scenarios would be plausible:
- The Governor declares the falling reading scores of minority students in some localities constitute an emergency and orders the school boards in those localities to approve the establishment of charter schools in their jurisdictions.
- The Governor declares the increase in the crime rate to be an emergency and orders that no prisoners currently incarcerated be released on parole, even if eligible for consideration for parole under the law.
Do conservatives really want a governor to have this sort of power? They may approve of the results set out above, but they need to keep in mind that such power could be wielded in ways in which they may not approve.
Do conservatives really want a governor to have this sort of power? They may approve of the results set out above, but they need to keep in mind that such power could be wielded in ways in which they may not approve.
Here is an example of another possible use of the “Miyares doctrine.” The state constitution has the following declaration:
…it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings. Further, it shall be the Commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth. (Article XI, Section 2)
The moral: Be careful of what you ask for. Once power is granted to a governor, it will be used by whatever governor is in office and maybe not for ends that you favor.
Categories: CIVIL RIGHTS, coronavirus, elections, Issues, legislature, Local, National, pandemic, political discourse, political parties, politics, republicans, RULE OF LAW, State
Join the discussion!