Home Coronavirus Former VA Lt. Gov. Bill Bolling (R): Gov. Youngkin “does not have...

Former VA Lt. Gov. Bill Bolling (R): Gov. Youngkin “does not have unchecked authority”; Cannot Overturn State LAW on Masking in Schools

"Local School Boards do not work for the Governor"

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Very interesting post by former/two-term Virginia Lt. Governor Bill Bolling (R)…bolding added for emphasis:

TO MASK OR NOT TO MASK

In one of his first acts as Governor of Virginia, Glenn Youngkin issued an Executive Order that prohibited public school systems in Virginia from requiring that students wear a face mask in the classroom. This Executive Order was intended to keep a campaign promise that Youngkin made to empower parents to make decisions of this nature for their children, but it has sparked a predictable tsunami of opposition from many other parents and school officials across the state.

As of this writing, most local school systems who have weighed in on this issue have indicated that do not intend to comply with the Governor’s Executive Order, and they intend to keep their mandatory mask policies in place. This has caused many Youngkin supporters to ask how local school systems can so blatantly defy the new Governor’s Executive Order. Let’s consider that question.

First, a few thoughts on Governor’s and Executive Orders. Historically, chief executives (Presidents, Governors, etc.) have used Executive Orders to set forth their preferred way of doing business within the level of the government they lead, and in those areas where they are clearly empowered to do so. However, in recent years, driven by dysfunction in the legislative process, many chief executives have stated using Executive Orders to try and achieve policy goals that they have been unable to achieve in the legislative process. In doing so, they often overstep their bounds, which causes their executive actions to be questioned.
Local School Boards do not work for the Governor. They are a part of local government, not state government. They do not report to the Governor. Many local School Boards are independently elected in their respective county or city. Many others are appointed by their local Board of Supervisors. They ultimately report to their local citizens, or the local Board of Supervisors, not the Governor. As such, the Governor’s ability to direct the actions of a local school division through an Executive Order is very suspect as a matter of law.

It is also important to remember that Executive Orders are not the same as law, and Executive Orders cannot unilaterally reverse existing law. That is particularly important in understanding the current controversy regarding Governor Youngkin’s Executive Order prohibiting local school divisions from requiring face masks in the classroom.

In the current situation, the Governor’s ability to direct the actions of a local school division through an Executive Order is even more dubious because in 2021 the Virginia General Assembly passed a state LAW that requires local school divisions to follow the recommendations of the CDC in enacting policies to keep students, faculty and staff as safe as possible form the threat of COVID. CDC guidelines currently call for the masking of all persons in a public school building, and as such, state LAW would appear to require that local school divisions following this recommendation. This is obviously in direct conflict with Governor Youngkin’s Executive Order. It is unlikely that any county or city attorney would recommend that a local school division violate state LAW to comply with a questionable Executive Order. Established LAW will always take precedent over an Executive Order.

At the end of the day, it is doubtful that Governor Youngkin’s Executive Order will stand. It will certainly make those people who are opposed to mandatory mask policies happy, at least for a while; and it will undoubtedly create a great deal of controversy for local school systems, which they really don’t need right now; but ultimately, this Executive Order will likely be overturned by the courts, who will almost certainly uphold the 2021 LAW that was passed by the General Assembly. A Governor cannot, nor should he be able to, unilaterally overturn a LAW that was properly enacted through the established legislative process.

If the Governor cannot unilaterally tell local school systems what they can and cannot do through an Executive Order, how should he have attempted to rectify the current situation? A good first step would have been to seek repeal of the 2021 state LAW that requires local school divisions to follow CDC guidelines regarding masking, etc. This would have left each local school division free to establish the policy that was right for their local community. But Governor Youngkin chose not to do that, most likely because he knew that such an effort would not be approved by the General Assembly.

Whether you support mandatory mask policies in the public schools or not, just be aware that the current debate goes much deeper than that. It is ultimately about a Governor’s power to force a local school system to comply with his wishes, especially when that effort is not consistent with existing state law. A Governor does not have unchecked authority, and we should all fear a system that would give any elected official unchecked authority. Even Governors have to know their limitations, and they certainly have to comply with the law, just like everyone else.

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