FAIRFAX COUNTY, Va. — The battle over masks continues in Fairfax County after the Fairfax County School Board (FCSB) filed a motion ahead of a Monday federal court hearing on the ACLU's no-mask mandate lawsuit.
In that motion, the FCSB states the new Virginia law ending mask mandates is unconstitutional.
The board also expressed support for the federal lawsuit filed by the ACLU of Virginia challenging the executive order on behalf of parents of students with disabilities.
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The FCSB isn't joining the lawsuit but wanted its voice to be heard in the official federal filing ahead of Monday's hearing.
"FCSB submits that the same unconstitutional overreach represented by EO2 infects SB739 as well. In short, both EO2 and SB739 violate local school boards’ deeply rooted constitutional authority under Article VIII, Section 7 of the Constitution of Virginia (and its predecessor, Section 133 of the 1902 Constitution of Virginia), as construed and applied in a long line of decisions of the Supreme Court of Virginia and of the federal courts," the filing reads.
"In its brief, FCSB points out the many ways that the issues raised by S.B. 739 are of tremendous practical importance not only with respect to whether the option of masking can be utilized in situations where medically and immune-compromised students cannot otherwise safely attend school, but much more broadly, whether the General Assembly can prohibit commonsense health, safety and educational measures employed by local school boards as a part of their Constitutional responsibility of supervision, and local control, under Art. VIII, Section 7 of the Constitution of Virginia," the court filing reads.
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The Fairfax County Parents Association filed its own motion in response.
"The thing that was a little unusual about their position was it was arguing a lot of things that was state law unconstitutional, and this is a case that’s in federal court," Shawnna Yashar, a Fairfax County Public School parent said.
“We wanted to highlight some of the issues we’ve been seeing with our families, especially with kids with learning disabilities and kids with speech therapy classes," Yashar said. "The masks are really affecting those kids and their ability to make progress with the various therapies that they have."
The attorney representing the ACLU of Virginia said the lawsuit itself focuses on getting children the accommodations they need.
“This lawsuit is about children with disabilities and their ability to get the accommodations they need. We’re not looking to universal mask mandates this isn’t about requiring masking indefinitely it’s really about these specific children and other children who are immunocompromised getting the care they need in a school setting," Matthew Callahan, a Senior Staff Attorney at ACLU of Virginia said.
Attorney General Jason Miyares has asked the court to dismiss the lawsuit.
Callahan said the ACLU is hopeful the judge will have a decision in the next week or two.
In the meantime, masks are still optional in Fairfax schools, in accordance with the law.