State Supreme Court orders Newsom to respond to O.C. Board of Education petition to reopen schools


The Orange County Board of Education’s legal battle to reopen school campuses for in-person learning gained steam this week when the state Supreme Court ordered Gov. Gavin Newsom to defend his executive authority to keep students at home during the pandemic.

The court compelled Newsom to respond to two legal petitions questioning the constitutionality of a July 17 mandate that ordered schools in counties on a statewide coronavirus watchlist to resume distance learning in the 2020-21 school year.

One of the documents filed Friday by Murrieta-based law firm Tyler & Bursch represents the Board of Education, an Anaheim public charter school and three public school parents. A second filed at the same time speaks on behalf of private-school petitioners.


Newsom “recently ushered in a new wave of COVID-19 restrictions which bar in-person schooling for most children in California,” the public-school petition states.

“In enacting these new restrictions, he has sacrificed the well-being of children, and children’s important fundamental interest in receiving equal access to meaningful education,” it continues.

The petitions further seek to overturn the state’s authority to enforce compliance with emergency executive orders and state public health directives, asking whether such orders violate state and federal equal protection and disability laws. The court has given Newsom and other named respondents until Friday at 3 p.m. to submit their response.

Attorney Robert Tyler, whose firm is representing the Board of Education on a pro bono basis, said Thursday that his firm filed the petitions directly with the state Supreme Court, feeling the matter to be pressing as many California schools have already begun the new school year. He said he was bolstered by the court’s immediate action.

“My read is that the court is taking this very seriously, because we’ve raised a significant issue that affects millions of children across our state and is an urgent matter that has to be decided quickly,” he said.


The Board of Education voted 4 to 0 during a July 28 special meeting to pursue litigation to overturn Newsom’s July 17 distance-learning mandate. At the time, Orange County was among many California counties on a monitoring list for high coronavirus infections and hospitalizations.

On Aug. 3, as the county’s virus rates began to decline, the California Department of Public Health announced schools and districts could seek a waiver allowing K-6 classes to return to campuses. In a week, nearly 50 institutions, mostly small private and charter schools, had applied for waivers.

Since the board’s decision to sue the state, Orange County has been removed from the state watchlist and on Thursday was five days into the new designation. If it can remain off the list for 14 days, in-person instruction may resume with coronavirus precautions in place.

The Health Department on Tuesday took another step toward school reopening, creating guidelines that would allow small cohorts of special needs students and others disproportionately impacted by distance learning to receive instruction on school grounds.

Tyler said even though restrictions may be loosening, a favorable ruling from the court could potentially keep schools open should Orange County be placed back on the state’s monitoring list. It could also potentially rein in Newsom’s emergency executive powers, which, he said, are too expansive.


“We believe it is unconscionable for the governor to have such broad and unbridled discretion for such a long period,” he added.

Orange County Board of Education Vice President Mari Barke said she believes the recent allowances made by the Health Department may be the sign of a shifting tide.

“Maybe it isn’t a coincidence, given all the pressure we’re putting on them, that some of these things are happening,” Barke said Thursday. “Maybe things are starting to turn — it’s important to stay the course.”

After Newsom’s response is filed with the Supreme Court clerk, Tyler & Bursch will have until Sept. 1 to prepare a reply. Tyler said he was hopeful his team would know by next week whether the court might take up the case.

Cardine writes for Times Community News.