State Supreme Court will not hear O.C. Board of Education case against Newsom on school reopening

The Orange County Department of Education office in Costa Mesa.
A petition filed on behalf of the Orange County Board of Education asking the state Supreme Court to weigh in on Gov. Gavin Newsom’s authority to keep school campuses closed during the pandemic will not be heard, justices announced Wednesday.
(Don Leach / Staff Photographer)

A petition filed on behalf of the Orange County Board of Education asking the state Supreme Court to check Gov. Gavin Newsom’s authority to keep school campuses closed during the pandemic has been denied, according to a decision issued Wednesday.

Following the court’s weekly conference, in which justices summarily review hundreds of petitions, the panel decided to deny the board’s petition, a spokesperson for the court confirmed Thursday.

“We were quite surprised yesterday when we got the response — we thought this was important enough the Supreme Court might take it up,” board Vice President Mari Barke said Thursday. “[But] we don’t plan to stop fighting.”


Two petitions filed Aug. 21 by Murrieta-based law firm Tyler & Bursch — one on behalf of the county board and public school interests and another representing private school entities — sought to reverse a July 17 order stating schools in counties on a state coronavirus monitoring list could not resume in-person learning for the 2020-21 school year.

Petitioners also aimed to overturn the state’s authority to enforce compliance with emergency executive orders and public health directives made by Newsom. In particular, they questioned whether such orders violated state and federal equal protection and disability laws.

On Aug. 24, the court compelled Newsom to respond to the claims made against his authority. Attorneys for the governor filed a preliminary opposition statement four days later, stating Newsom and state officials have “appropriately exercised state police powers in responding to the unprecedented deadly COVID-19 pandemic.”

“It is the state’s duty to take measures deemed necessary to protect public health,” the document continued. “Petitioners offer no valid basis to interfere with state officials’ exercise of their legitimate police powers, or to bar the state and state public health officials from playing any role in establishing a framework for when and how students may return to classroom learning.”

In a response filed with the court Sept. 1, Tyler & Bursch alleged that the state engaged in illogical behavior when it deemed COVID-19 a “grave threat” that stood in the way of reopening schools, yet issued an Aug. 25 order allowing small cohorts of students with special needs to receive in-person interventions and services.

“How is it going to alter the spread of COVID-19 if kids are supervised in groups of 14 but not taught in groups of 14?” it posed. “The opposition did not provide any support for these decisions.”

In a statement issued following the ruling, Principal Robert Tyler said the higher court’s denial had no effect of law and that he intended to file the case at the superior court level.

“Once we proceed through the normal process, we believe we will still be victorious in the end,” Tyler said. “No public or elected official should have the authority to have unbridled discretion to deny children their fundamental right to equal protection and access to equal education.”

Attorneys representing Newsom in the matter did not respond to requests for comment. Barke said the Orange County Board of Education would soon reconvene to decide the best course of action.

“We’ll see when everybody can get together and decide how to move forward. We are not ready to give up,” she said.

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