On the menu today: Virginia governor Glenn Youngkin is going to win his fight with seven local school boards on whether masks should be optional. The only questions are when and how; Virginia is just past the Omicron peak, and hospitalization rates are still exceptionally high — but the picture should look different a month from now; a New York judge concludes that Governor Kathy Hochul can’t establish mask mandates for schools and other public locations all by herself; if you have ever wanted to purchase a hat worn by Melania Trump, you will have that opportunity soon; and finally, a Canadian newspaper spotlights a strong candidate for the unluckiest man in the world.
Time Is on Glenn Youngkin’s Side
There are a healthy number of Virginia parents who would like to decide for themselves whether their kids should wear masks to school. On Youngkin’s first day as governor, he issued an executive order declaring that parents should decide about their kids and masks, effectively overruling schools that operated with mask mandates.
Several school boards, along with some Democrats in the state legislature, contended that Youngkin didn’t have the authority to enact that change, as the state had passed legislation requiring school boards to adhere “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 still recommends “universal indoor masking by all students (ages 2 years and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status.”
Seven school boards — Fairfax, Prince William and Arlington counties, and the cities of Alexandria, Hampton, Falls Church, and Richmond — sued Youngkin Monday to block his executive order to make masks in schools optional. The governor’s order went into effect Monday in localities that haven’t decided to defy it.
If there’s one somewhat-compelling counterargument to Youngkin’s order, it’s that the state of Virginia is just past the peak of the Omicron wave, but that cases are still pretty high, and the number of Covid-19 hospitalizations is still in record or near-record territory. On December 11, the state had around 24,000 confirmed and probable cases; by January 8, that had skyrocketed to more than 120,000 confirmed and probable cases. According to the Virginia Department of Health, as of Saturday, the state was back down to about 57,000 confirmed and probable cases.
But the number of patients in hospitals with Covid-19 has hit new records in January; as of this morning, 3,648 patients in Virginia hospitals are being treated, with 3,513 of them confirmed to have Covid and another 135 cases whose test results are pending. Before the Omicron wave, the state’s highest number of Covid-19 patients being treated on one day was recorded on January 13, 2021, with 3,201. Also, there are 601 Virginians with Covid-19 in ICU beds and 386 on ventilator support.
The experience of other countries indicates that the Omicron wave increases extremely quickly and then decreases extremely quickly. A month from now, the number of Covid-19 cases in Virginia will be significantly lower. Based upon the seven-day average, Virginia appears to have peaked on January 11 at 19,836 cases. If this state has the same rate of change as South Africa, one month after the peak, cases will be 18 percent of the peak — meaning about 3,570 cases.
The argument for keeping the mask mandates in place has a strength right now that won’t be there in four, six, or eight weeks.
That argument is likely a factor in the announcement from Democratic state senator Chap Petersen that school boards must define the conditions under which they will no longer require masks. As the Daily Wire first reported, Petersen said in an email to the Fairfax County Parents Association that Fairfax’s school board “must define an ‘off ramp’ for mandatory masking. That means plainly stated metrics as well as a final deadline (e.g. Valentine’s Day). They should announce that immediately. The forced masking policy is going to end very soon, i.e. in a few weeks. Otherwise, the General Assembly will again step in. IT IS NOT AN ACCEPTABLE LONG-TERM SOLUTION.”
The position of Petersen shouldn’t have been the shock that it was. A moderate Democrat known for wearing bow ties, Petersen irked the Washington Post editorial board in August for wanting schools to have flexibility on masking policies. He’s lamented that local school boards can make it nearly impossible to found a new charter school, and wants to streamline that process.
Most notably, on January 13, Petersen co-wrote an op-ed with Dr. Babur Lateef, chairman of the Prince William County School Board, declaring that:
COVID-19 restrictions will not last forever. There must be an agreed exit strategy or school boards will have to create one on their own.
In the new year, governors and legislatures must develop achievable “off-ramps” for the COVID-19 protocols, based on sound scientific principles. For masks, it will require a set of metrics that will allow school boards to act based on empirical health outcomes, not political pressure from pro-mask or anti-mask forces. And the default option should be normalcy unless there is a specific showing of harm to the students at issue.
If a judge determines that the governor’s executive order cannot overrule state law, then it will be up to the state legislature to revise the law. Republicans have a 52–48 advantage in the House of Delegates, and Democrats have a 21–19 advantage in the state Senate. If Petersen voted with the Republicans, the 20–20 tie would be broken by the lieutenant governor, Republican Winsome Sears.
And even some of those defending the mask mandates recognize that “masking forever” is not a defensible public position. Scott Brabrand, the superintendent of Fairfax County Public Schools, declared in a message to parents that, “While COVID-19 transmission remains high in our community, universal masking is essential for maintaining a healthy, safe learning environment for all — especially our most vulnerable students and those at a higher risk of severe illness. That is why our layered prevention strategies, including universal masking, remain in place.” But Braband added that, “We also believe there will be a time, hopefully soon, when we will be able to safely roll back many of the protection measures we have had in place since the start of the pandemic.”
Here in Fairfax County, I’ve asked other parents who want their kids to wear masks, “What would you need to see to feel comfortable with your children going to school unmasked?” All of them have offered some version of, “I’d like to see cases come down.” So far, no parent has told me that they want their children to wear masks forever or for the foreseeable future. (Then again, these parents may see me as a right-wing maniac and calibrate their answers accordingly. The problem with using the “Your ideas are intriguing to me and I would like to subscribe to your newsletter” blowing-off-a-lunatic line on me is that I actually have a newsletter.)
As for the legal arguments, the great Ilya Shapiro contends that this executive order “is well-lawyered and doesn’t override state law.” Shapiro knows more about the law than I ever will, and I hope he’s right. But I’m not sure he’s right — or at least, I’m not sure that a judge will see it the same way.
For Democrats in the state legislature, the question may be whether they would prefer to lose on a vote, with the first African-American–woman lieutenant governor breaking the tie, or whether they would prefer that the local school boards dropped their lawsuits citing a decline in cases and loosened their policies. Sooner or later, Glenn Youngkin is going to win this fight. The question is how and when.
Meanwhile, a Bit North on I-95 . . .
A New York State Supreme Court judge on Monday ruled that Governor Kathy Hochul’s mask mandate for schools and other public locations is unconstitutional. Judge Thomas Rademaker found that the governor and the state health commissioner did not have the authority to enact a mask mandate without the state legislature, given that the governor no longer has emergency powers.
On the most recent episode of The Editors, I go on a short rant about this. If we’re two years past the arrival of Covid-19 on our shores, it is no longer an “emergency” and mayors and governors can no longer enact restrictions upon our lives willy-nilly by executive order. Our systems of government divide power and require legislatures to approve these government actions.
Want to Buy Melania’s Hat?
This is a good example of the kind of random announcements that end up in my inbox, from MelaniaTrump.com:
The Head of State Collection commemorates the Trump Administration’s first official state visit and features 3 one-of-a-kind signed items:
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White Broad Brimmed, High Blocked Crown Hat, worn and signed by Melania Trump (Hervé Pierre 2018);
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Watercolor on Paper, signed by Melania Trump and Marc-Antoine Coulon (Coulon 2021)
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Digital Artwork NFT with Motion, signed by Melania Trump and Marc-Antoine Coulon (Coulon 2021).
It’s a free country, and the Trumps can enjoy life as private citizens however they like. But . . . do the Trumps need to auction off signed hats or artwork? Aren’t Donald and Melania worth something like $2.5 billion? Are they having some liquidity problems over there? Isn’t Trump supposed to be making $100 million on the sale of his Washington hotel?
ADDENDUM: Next time you think you’re having a rough stretch in life, think of this poor guy: “A former Afghan translator for the Canadian military stuck in Kyiv fears being caught in a war zone — again.”