The Misinterpretation of SB 1303

On July 1st, SB1303 became law. It requires K-12 schools in Virginia to open full time for in-person education.


On July 21st, Governor Northam announced that school divisions would be free to make their own decisions about mitigation policies and masking.


On August 5th, Governor Northam, at a press conference, opined that, based on SB1303, any school division that didn’t impose mask mandates might be in violation of the law and therefore legally liable.


How can lawyers and liability insurers feel comfortable with an accurate interpretation of the law after a veiled threat from the Governor? As the executive, he has the full weight of the state government behind him. Does he mean that the state will sue the school divisions? Is he informing Virginians to sue school divisions if they don’t like their policy?


School boards are confused and getting mixed signals from the Northam Administration for a second year in a row.


Many school divisions worked with their communities and families and made decisions about how to proceed this fall; indeed, some have already opened. They held public hearings and did the hard work of consensus building, based on guidance from the Governor.


The Governor did not reach out with earnest concern or insight to suggest there was a potential problem. He did not send a letter with a legally offered opinion to the school divisions to respectfully engage. Instead, in a hyper-political way, he made an announcement at a press conference DURING a question from a reporter. A press conference. What a way to light a fire of dismay and conflict. What a complete failure of leadership and thought guidance for a Governor and a physician.


Northam abandoned executive leadership. Again. For the second year in a row. He abruptly put school divisions and public education in a terrible situation.


As the patron of the bill, I know that is not the intent nor the meaning of the bill.


SB 1303 flips the issue on its head - correcting the Governor’s mistaken guidance from last summer making school opening for in-person education the top priority and mitigation adaptable to accomplish that goal. Opening for in person education should be the first priority.


The bill says the school board “shall provide such in-person instruction in a manner in which it adheres, to the maximum extent practicable…” That language was used specifically to help school districts make decisions based on consensus within their division’s community.


Indeed, this bill was only needed because the Governor failed to act to open schools himself last school year. He completely disregarded science, evidence and even the definitive position of his own medical speciality Board, the American Academy of Pediatrics (AAP).


In fact, the reason school boards cited they could not open last fall was because it was impossible for them to comply with the mitigation guidelines that the administration superimposed on the CDC advice in the summer of 2020. They could not find a way to follow all the guidelines and open. The Governor's addition of those mitigation procedures, and, in fact, the worry about their liability, kept our schools closed. At any time he could have directed schools to open, but he didn’t. He finally half-heartedly encouraged opening after the bill passed the Senate with bipartisan support.


Over the past few weeks, localities have engaged their communities, built consensus, made decisions best suited for teachers, parents and students, and as a result, we saw a variety of plans. Where they had ample time to work thoroughly through these decisions, they only had hours to respond when the Governor acted by fiat and press conference, contradicting even his own guidance.


Remember the AAP and CDC said that the safety risk of closed schools far outweighs the risk of COVID for our kids. All the data we have, even with the Delta variant, verifies the risk of COVID to children is extremely low.


Many would ask why not just mask? Here is a great review of why masking decisions for children should be individualized and not mandated.


We need a flexible way forward for our children so they can all have the benefit of in-person education.


Masking is something proactive we can do as a community struggling to find a way forward, and for many, it does no harm and is no big deal. But, there are times when the negatives outweigh any evidence of benefit. This is particularly true for children.


The article referenced above, from a reputable source with professionals in the field, acknowledges that while we hope masks work, we do not have adequate scientific knowledge that they do.


For the last 18 months, I have consistently encouraged people to use masks regardless of the uncertainty, believing together we can move this mountain. I have sought to build consensus and find a way forward together as a community with the hope we can protect everyone at risk.


Children have unique issues with mask wearing and we have to consider them individually. Some children wear the mask well and are not disrupted, and they can be encouraged to mask. Others have real issues learning while wearing masks. For younger children, the mask is often on incorrectly, chewed on or played with, and inhibits the ability to see and understand word formation. Decisions about mask wearing should be based on the best interest of each child and made by the child and parent. That’s the practicable way to approach comprehensive safety for our kids with a focus on their need to learn.


There are many other mitigation tools schools can use and masking falls fourth in the ranking of effectiveness in preventing asymptomatic transmission. Schools should rigorously use mitigation procedures that rank higher like ventilation, distancing and pods, and we should all be aware that masking is not the only or even best protection for our children.


Finally, I ask how this mandate will be enforced. There are very few options. Will children be expelled if they don’t comply? Will families be fined or will there be charges as were proposed last year by the governors mask mandate? More likely than not it’s just an additional burden on our teachers who have a formidable task in front of them to assess our children and make up for learning loss and deal with the emotional consequences of school closure. Are we going to make teachers accountable for enforcement? Will they have a penalty if they can’t get compliance? Mandates are simply not practicable.


I have and continue to encourage everyone to get vaccinated. I introduced a bill to expand who can administer the covid vaccine, and volunteered to vaccinate myself. In addition to school mitigation, one of the best ways to protect children is for the adults around them to be vaccinated. I know not everybody agrees on this issue either, but the science and data support vaccination safety and effectiveness. Vaccination profoundly decreases the risk of hospitalization and death.