California Supreme Court Orders Gov. Newsom to Justify School Closure Orders
The governor has until Friday to respond
By Evan Gahr, California Globe
The California Supreme Court has given Governor Gavin Newsom until Friday to respond to lawsuits seeking to enjoin his orders that bar schools opening for in-person learning.
The lawsuits, formerly known as “writ petitions” were filed by the Tyler and Bursch law firm on behalf of a coalition of parents, private schools, a charter school and the Orange County Board of Education.
Department of Public Health director Sandra Shewry was also named in the filings.
Attorney Robert Tyler told the California Globe that it was “fantastic wonderful news” that the Supreme Court had accepted their writ petition because most of those filed are denied.
“By closing the schools of California to in-person learning he [Newsom] is creating havoc for parents and children,” Tyler contended. “The California Constitution requires that all children receive an equal education. Our position is that he is creating an unequal burden on economically disadvantaged families.”
He said that poorer families don’t have the money to pay for learning pods that are popping up all over California. And that one of his clients is a single mother who works full time and can’t stay at home with her child for online learning. “For many single parents they have to choose between educating their child and putting food on their child.”
One writ petition was filed in the California Supreme Court on behalf of private schools: Immanuel Schools; Linfield Christian School; Calvary Murrieta; Calvary Chapel Of San Jose; Clovis Christian Schools; and parents Regina Bailey; Nicole Hill; Katie MacDonnell; and Jenny Pierce Heil.
The other was filed on behalf of the Orange County Board of Education, which wants to reopen schools and the Palm Lane Charter School. The parents represented in that case are Juaquin Cruz; Angela Miller; and Cecilia Ochoa.
The private schools case says that the policy discriminates against private schools as a class because they do not receive state funding that makes online learning possible.
“Governor Newsom’s defiance of the rule of law and disregard for the constitution usurped Private Schools’ contractual rights and detrimentally effected the learning of students across the State of California in violation of the Equal Protection Clause,” the complaint says.
It says that “the orders discriminate against an identifiable class, students who attend private schools in the State of California. Private school students are a unique and identifiable class outside of public schools as they do not obtain state funding and thus, cannot obtain the same benefits of distance learning which are facilitated through the governmental supplements. Thus, private school students are at a disadvantage as a unique and identifiable class.”
Citing the low rates at which children spread the corona virus and get infected the request for relief also said the closure order can not survive the legal requirement of strict scrutiny because it does not serve any rational objective. “The Governor’s orders, even by scientific standards, fail to meet a strict or even a rational scrutiny as there is an absence of evidence and no medical basis for continuing to keep schools closed.”
It also says that the closure order violates the California constitution and the United States Constitution because of its “interference with petitioners contractual rights.”
That basically means sending your kids to a private school amounts to a contract and Newsom is interfering with the contract being carried out by ordering the schools closed.
“The Governor’s Executive Orders and the [California Department of Public Health} directives substantially impair these contracts as the mandatory implementation of distance learning impedes Petitioner’s ability to complete its contractual obligations which places some Petitioners in a position of serious financial jeopardy due to the failure to comply with their contractual obligations, loss of students, and the assumption of contractual liability stemming from hundreds of potential breach of contract allegations from parents.”
It says that Newsom exceeded his authority to issue the directive.
“Governor Newsom wields the Executive Powers under the State of Emergency like a sword, exercising greater discretion than that of granting a license or waivers.”
“Five months after the declared state of emergency, the Governor continues to suspend liberty rights, including those of students and private schools, for unlimited durations based on unproven projections and contrary to scientific reports from experts and the CDC.”
The complaint on behalf of public schools and public school parents says that the closure order violates the rights of special needs students under the Individual Disabilities Education Act because they need in person learning to meet their needs. “Thus, in order to meet the mandatory requirements of IDEA, public school districts must conduct in person instruction which is specially designed to aid disabled students and meet their specialized education needs in a manner which is consistent with the student’s IEP.”
It says the order also violates the federal Americans with Disabilities Act, which requires reasonable accommodations for anybody with disabilities, because it prevents them from going to schools and getting kind specialized instruction that can’t be achieved through online learning.
Echoing the complaint brought by private schools and private school parents the public school complaint says the closure orders have no rational basis. “The Executive Orders and subsequent directives cannot survive a strict scrutiny challenge where, as here, it is not the least restrictive means of furthering the government’s goal of reducing the transmission of coronavirus as demonstrated through the conceded development of scientific data relating to the transmission in minors, as well as studies reporting a low risk to students and indicating that less than 2% of COVID-19 transmissions occur in individuals under the age of 20.”
As Tyler told the California Globe, “the data and science shows the schools should be opened.”
