What happens if school districts don't follow CDC mask guidance?

Teachers union calling for masks to be worn at all times in school
Posted at 9:09 AM, Aug 12, 2021

HANOVER COUNTY, Va. - The Hanover County School Board decided by just one vote to make masking optional for the upcoming school year. However, the decision has resulted in pushback from groups and possible actions from Governor Ralph Northam due to a recently passed law.

Northam said he will issue "additional clarification" shortly on the subject of mask requirements in schools, the clarification coming following Hanover's mask decision.

The Hanover County NAACP announced its opposition to the Tuesday night decision by theschool board to make masks optional in the upcoming school year. The group is calling for the decision to be reversed, while supporters said the decision was a "small victory".

"I'm feeling disturbed," said Hanover NAACP president Patricia Hunter-Jordan. "Our entire organization is upset about the fact that the school board determined against the will of the superintendent of schools to send our children back to school with options for masks."

HCPS Superintendent Dr. Michael Gill presented the school board with his recommendation that masks be required at the elementary school level and for those who were not fully vaccinated at the secondary level. However, the board voted by a 4-3 margin in favor of making masking optional within schools.

Hunter-Jordan said her group is calling on the board to hold a special meeting to reverse its decision.

"We would love to see a universal mask mandate. However, what Dr. Gill presented was far better than the option we've now been left with," said Hunter-Jordan.

The hours-long meeting was attended by dozens, many of who were in favor of the decision made by the board, including Gillian Haynes, the parent of a rising seventh-grader.

"It's a small victory because it is based on the numbers. So, if the numbers change, they're watching the data every day. So, if the data changes, obviously, they can change their mind at it at a moment's notice," said Haynes. "I'm very, very pleased with the board voting the way that they did. I just hope that they continue to have some courage in this and continue to listen to the parents about what's best for our children because we know best."

CBS 6 reached out to Superintendent Gill about the board's decision to not go with his recommendation.

“I, along with my staff, will carry out the will of the school board to the best of our ability. As always, the health, safety, and well-being of our students and staff are our top priority," Gill said in a statement.

However, the board's decision puts the school system at odds with Northam.

Last week, the Governor said during a news conference that a new law passed by the General Assembly this past year that requires school districts to offer in-person learning also says districts have to follow CDC COVID-19 mitigation guidance to the "maximum extent practicable."

Currently, that guidance recommends universal masking.

"I don't know that it couldn't be any simpler than that," Northam said. "It's the law of the Commonwealth of Virginia and I expect our school districts to follow the law."

Northam said that districts that don't follow the law should have "a frank discussion with their legal counsel."

However, the bill's sponsor, State Senator Siobhan Dunnavant, disagrees with the Governor's interpretation of the bill and supports the decision made by Hanover County schools.

"I think, once again, Hanover is doing a very meticulous job to serve and represent their constituents and students," Dunnavant said. "The language 'practicable' was specifically put in there to give localities the room they needed to make the best decisions. They're the ones that build consensus. They're the ones that have a public hearing."

CBS 6 spoke to two lawyers about the bill and they had differing takes on how the law should be interpreted.

"When legislators write phrases into the law, such as 'to the maximum extent practicable' what they're doing is giving those who have to implement that law wiggle room," said Diane Toscano, founder of the Toscano Law Group. "So, it should come as no surprise that school districts are deciding for themselves what that means in terms of masking students. If the General Assembly didn't intend for that interpretation, they wouldn't have written those words into the statute. So, if a local school division doesn't find masking practical, they're going to lean on those words as their justification for that decision."

"The way I would interpret the statute looking at the plain language of the statute, is that it means you have to follow existing CDC guidelines to the maximum extent practicable," said UVA Law Professor Margaret Riley. "If there is wiggle room in this statute, if you look at it, the wiggle room actually works in the context of allowing a school -- should it have, for example, a major outbreak -- to undertake mitigation strategies that might exceed what the CDC guidelines have recommended. I don't see anything in this statute that allows the school board to undertake mitigation strategies that are less than what the CDC guidelines state."

With the apparent conflict between HCPS and the Governor's interpretation of the law, neither attorney could definitively state what might come next.

"I think that's up in the air," Riley said. "I'm not quite sure what kind of strategies the state would undertake. And some of that may depend on any negotiations that the state has with that school board. I do think ultimately, in my opinion, should this case go to court, it would ultimately fail. I think the school board would be required to follow the current CDC guidelines or whatever the guidelines are at the time of the decision."

The bill and its potential implications were discussed during Tuesday night's meeting. CBS 6 reached out to the board seeking further comment on the issue and was referred to the Board Chair Ola Hawkins, who had not responded as of Wednesday evening.

Meanwhile, Governor Ralph Northam's office said the Governor will be issuing updated guidance on the issue soon.

"SB 1303 was passed overwhelmingly with bipartisan support. This isn't about politics—students learn best when they are in the classroom, and masks help to protect everyone, especially kids who aren’t yet vaccinated. This law will help to keep schools open and ensure the safety of staff, teachers, and students," said Northam's spokesperson, Alena Yarmosky, in an email. "While the vast majority of school divisions have complied with the law, it's clear there are a few that need additional clarification. We plan to provide that shortly, and fully expect all school districts will do the right thing."