The parents of 12 immunocompromised children, who filed for a temporary restraining order and preliminary injunction to advance their Feb. 1 lawsuit, earned a victory Wednesday night.
They originally asked the court to immediately prohibit Va. Gov. Glenn Youngkin and his administration from enforcing Executive Order 2 against Virginia school districts and allow districts the authority to keep in place the masking requirements needed to make it safe for their children to attend school.
READ MORE: Parents of 12 immunocompromised Va. students ask court to prohibit Youngkin's mask order
Wednesday, a federal judge granted those parents their injunction against Youngkin & his executive order on optional masking in school.
This means the parents of immunocompromised children may ask their respective school to require their child's classmates to return to masking.
“We can ask for peer masking as a reasonable accommodation,” said one of the parents who is one of 12 plaintiffs.
RELATED: LIST: Virginia schools make masks optional, comply with Youngkin's March 1 deadline
The judge stated the following:
"That said, federal law, namely Title II of the Americans with Disabilities Act (ADA) and 504 of the Rehabilitation Act, affords Plaintiffs a right to request a reasonable modification from state or local laws. The challenged state laws (E.O. 2 and S.B. 739) are preempted inasmuch as they pose an obstacle to Plaintiffs’ right. Defendants are enjoined from enforcing E.O. 2 and S.B. 739 to the extent that such actions would seek to prevent or limit Plaintiffs’ schools or school districts from considering in the first instance whether Plaintiffs’ individualized requests for masking constitute a reasonable modification under federal law."
Attorney General Miyares issued the following statement, acknowledging the injunction but stating that it backs up Virginia's new state law.
“Today’s ruling affirms that Governor Youngkin’s Executive Order 2 and Senate Bill 739 is the law of Virginia and parents have the right to make choices for their children," Miyares said. "In a 56-page written opinion order released this evening, the Court stated 'E.O. 2 and S.B. 739 are the law in Virginia and they remain in force, affording parents the choice whether their children should wear masks to school, notwithstanding any school rule that would require students to wear masks.'"
After Executive Order 2 went into effect, many Virginia school districts dropped their existing masking requirements, creating an environment where the safety of immunocompromised children is dependent on where they live. The plaintiffs argue that, under current COVID-19 conditions, their children are facing irreparable harm if the government is allowed to enforce the Executive Order.
The suit maintains that the Governor’s Executive Order forces students with disabilities to risk their safety or give up their education in violation of the Americans with Disabilities Act and other federal laws that protect disabled children.