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O.C. Board of Education will file lawsuit to overturn Gov. Gavin Newsom’s school closure order

The Orange County Department of Education office in Costa Mesa.
The Orange County Board of Education will seek to overturn a July 17 order by Gov. Gavin Newsom mandating schools in counties at high risk for coronavirus return to distance learning in the upcoming school year.
(Don Leach / Staff Photographer)

The Orange County Board of Education, which recently drew criticism for recommending schools reopen without masks or social distancing, announced Tuesday it will sue Gov. Gavin Newsom to allow California students to return to in-person classes in the fall.

Members voted 4-0 Tuesday during a special meeting to pursue litigation to overturn a July 17 order made by Newsom mandating schools in counties under state monitoring for high coronavirus rates — including Orange and Los Angeles counties — return to distance learning in the new school year.

After hearing nearly 30 public comments, the majority of which overwhelmingly opposed taking legal action, board members convened to closed session and returned to report the motion to proceed with the lawsuit had prevailed.

Trustee Beckie Gomez, who frequently votes against the board majority, was not present for that vote. Ken Williams, Mari Barke, Tim Shaw and Lisa Sparks voted in favor of the lawsuit.

“We have made the decision to put the needs of our students first by filing this lawsuit,” Williams, the board president, read from a board statement after announcing the vote. “The state has failed to address how high-risk students and those without adequate parental support will navigate the coming weeks and months in distance learning.”

The statement asserted Newsom’s order violates equal protection clauses in the California Constitution that guarantee students equal access to public education. Murrieta-based law firm Tyler & Bursch, which has an office in Anaheim, has agreed to take the case on a pro bono basis, Williams reported.

Attorney Robert Tyler confirmed Wednesday his firm has been working with the board regarding potential litigation from the nonprofit Freedom From Religion Foundation, which has challenged the panel’s longstanding inclusion of an invocation address at each meeting.

A set of guidelines adopted by the O.C. Board of Education advising schools reopen without masks and social distancing has ties to an anti-union, pro-charter school group opening an Orange County campus in August.

Tuesday’s meeting consisted of four closed session items on existing and anticipated litigation, including discussion on the invocation and two lawsuits filed by the Orange County Board of Education against the Orange County Department of Education, the agency under which the board serves.

Orange County Department of Education Supt. Al Mijares said in a statement Wednesday that he was disappointed to hear of the board’s plan to take legal action against the state but not surprised.

“This lawsuit continues the pattern of a highly litigious board majority that seems to have no qualms about diverting time, energy and financial resources from students and programs to satisfy their own ideological interests,” he said.

Mijares said his department will continue to work with local school boards and superintendents in support of reopening plans that are “based on the guidance of state and local public health agencies and the needs of their communities.”

Board of Education members have repeatedly claimed orders calling for school closures to prevent the spread of the coronavirus are not scientifically valid and cause more harm than good, as children are deprived social interaction and stuck in homes that may not be suitable learning environments.

Williams and Barke, the board vice president, arranged a June 24 community forum featuring a panel of physicians and policy experts, many of whom echoed the board’s claims and said children presented a very low, almost negligible risk of spreading the coronavirus.

The forum was moderated by Will Swaim, former founding editor of the OC Weekly and president of the conservative-leaning think tank the California Policy Center, a vocal critic of employee unions and proponent of school choice.

Swaim drafted a white paper from the discussion citing advocacy from the Centers for Disease Control and Prevention and the American Academy of Pediatrics that highlight the detrimental effects missing out on the school experience can have on children.

That document recommended a return to school campuses and outlined disinfection and hygiene protocol but did not include advice on mask wearing, social distancing or reduced class sizes — which are included in other state and county recommendations, including those created by the Orange County Department of Education.

Tyler said Wednesday forcing schools to close deepens inequities between students with the technology and resources to succeed at distance learning and the socioeconomically disadvantaged, who may lack the infrastructure and supports necessary to thrive.

“There are so many kids that are going to fall through the cracks, and this concern is the exact concern the board members have themselves,” Tyler said. “The decision to shut down schools is mostly impacting, in a negative fashion, the blue-collar, salt-of-the-earth [people] and it’s just not fair. Someone has to fight for these families.”

Tyler’s firm will file a legal complaint on behalf of the Board of Education naming Newsom, California State Public Health Officer Dr. Sonia Angell and State Superintendent of Public Instruction Tony Thurmond as defendants, though no date has been specified.

The group’s pro bono work is being supported by Advocates for Faith and Freedom, a nonprofit firm Tyler started in 2005 to help fund legal fights for religious freedoms. During the pandemic, for example, the group has supported churches’ rights to reopen as essential institutions.

Orange County Board of Education members said Monday they believe a return to schools is the best course for children, in part, because science has shown youth are not at great risk of contracting COVID-19.

In public comments to board members Tuesday, parents, teachers and community members delivered differing opinions on the lawsuit. Of 29 commenters, whose first names only were read by the board clerk, 22 criticized the board’s action.

“Whose interests are you really protecting? Who are the true benefactors of all your actions?” asked Isabella. “I propose you cease and desist and pay attention to the community. You’re to serve the public, not your personal lives or bank accounts.”

Those who favored the move spoke ardently about children whose physical, mental and emotional needs have been neglected during distance learning. Leigh, who described herself as a litigator with 30 years of experience, said she usually advises against litigation but not this time.

“I am here to urge you to litigate the living hell out of the July 17 mandate,” she said. “This is the only decision that matters — it is a life-and-death decision for some of these families.”

The Orange County Board of Education is not the only group interested in legally challenging Newsom’s school closure order. On July 21, the conservative nonprofit Center for American Liberty announced it had filed a similar lawsuit.

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