Education Matters: Challenging school reopening rules in court

A lawsuit filed Feb. 16 in San Diego Superior Court charges four California state officials, including Gov. Gavin Newsom, with creating arbitrary new rules that are restricting many public schools from safely reopening.

Marsha Sutton

(Courtesy)

“By preventing schools from reopening for in-person instruction in any capacity, defendants, through their orders, decisions, and other actions recited herein, have denied plaintiffs their fundamental right on behalf of their school-aged children…” reads a portion of the Complaint for Injunctive and Declaratory Relief and Petition for Writ of Mandate.

Defendants are: Newsom, Secretary of the Dept. of Health and Human Services Dr. Mark Ghaly, Successful Schools Team Lead for the Dept. of HHS Dr. Naomi Bardach, and Director and State Public Health Officer of the Dept. of Public Health Dr. Tomas Aragon.

Carlsbad Unified School District, Oceanside Unified School District, Poway Unified School District, San Dieguito Union High School District and San Marcos Unified School District are named as nominal defendants and are not expected to defend the lawsuit or prepare a formal response.

“We’re anticipating that they basically agree with our position which is that they were prepared to reopen and had plans in place,” said Scott Davison, who helped draft the lawsuit. “They would have reopened in January had this guidance not be issued.”

Law firms representing the plaintiffs are Aannestad Andelin & Corn of Cardiff and Musick Davison located in Carmel Valley.

The suit, organized by the Parent Association of North County San Diego, alleges that the state issued new rules without notice in mid-January, known as the January 2021 Framework, that prohibited schools from opening, thus blind-siding many districts that were prepared to open based on previous California Dept. of Public Health (CDPH) regulations.

From the complaint: “The January 2021 Framework … led to confusion, frustration, and the delay of reopening plans that had been in the works for months, had been approved by county health authorities and shown to be effective, and in many cases were only days away from implementation.”

The complaint also states that “CDPH has now acknowledged that its requirements are arbitrary, unnecessary, and overburdensome, and has started to develop a formal process for waivers from the very rules that caused CUSD, OUSD, PUSD, SDUHSD, and SMUSD to postpone their reopening plans.”

Davison, who serves as the Parent Association’s director of legislative affairs and co-director of the group’s Carlsbad chapter, said the lawsuit has relevance throughout the state.

He said the state’s new framework was issued without the legal process required of an administrative agency.

“It should have gone through the legislative process where the public gets to see the rules in advance and gets to comment on them,” he said. “They just kind of invented the rules on a whim in January without any advance notice.

“There’s a reason that we have rules of notice and comments: to prevent state agencies from making arbitrary decisions and arbitrary rules.”

Many schools have safely reopened since August without any issues, said Davison, who has a middle school child in Carlsbad Unified.

Despite the CDPH’s Jan. 2021 Framework that intended to clarify conditions for school reopenings, he said it only added confusion and frustration.

Arbitrary rules

The complaint states that, although there was no evidence that previous state guidelines issued in July 2020 resulted in the unsafe reopening of schools, “on January 14, 2021, CDPH abruptly released a new [framework] which created significant new restrictions for California schools.”

“At the same time that data is showing schools can be reopened safely, a growing body of evidence shows the alarming effects of prolonged and indefinite school closures on students,” reads the lawsuit. “The data is particularly alarming among teenagers, who have been continuously excluded from school reopening plans while many of their younger counterparts have been brought back.”

The lawsuit takes aim at a variety of rules issued by the CDPH in January that added new restrictions on school openings, such as an “ambiguous and improper attempt” to change the definition of a previously “opened” school, a new and arbitrary requirement for four feet of separation between students, the need for a “stable” group of students without defining what “stable” means, and setting illogical requirements for in-person attendance for grades 7-12 that are four times as restrictive as for elementary students.

“Until those rules are negated, we’re not going to be able to go back to full-time learning,” Davison said.

Scientific research and data from the Centers for Disease Control, the American Academy of Pediatrics and other reputable sources indicate that it’s safe to open schools under reasonable conditions and that the need for children to return to in-person learning has become desperate.

The complaint states that San Diego County moved off the state monitoring list on Aug. 18, 2020 and was given permission to open all K-12 schools for in-person instruction on Sept. 1, 2020.

“Despite being permitted – and required – to offer in-person instruction as of September 1, 2020, the majority of public school districts in San Diego County failed to plan for a return to in-person instruction,” reads the complaint.

The requirement to provide in-person instruction “to the fullest extent possible” was laid out in Senate Bill 98 which was signed into law June 29, 2020.

San Dieguito

The complaint offers San Dieguito as an example of one school district that decided in September 2020 to keep all its grades 7-12 students in distance learning until January 2021.

In December, school board members voted to reopen on Jan. 5, 2021, for a hybrid model with a full five-day-per-week reopening Jan. 27. But after a lawsuit was filed by the California Teachers Association on behalf of the San Dieguito Faculty Association (San Dieguito’s teachers union), the district settled and agreed not to open until at least Jan. 27.

“They were just going to delay reopening for three weeks,” Davison said. “That’s what they thought when they entered that settlement agreement. Then in the meantime this [CDPH] guidance came out and prevented them from reopening at all.

“Legally they had a good case to defend the lawsuit but they just decided to just settle,” he said.

If the January framework is determined to be invalid, San Dieguito and other districts could fully reopen, said Davison, adding that the union could file a lawsuit but it wouldn’t win because there wouldn’t be any basis for preventing teachers from going back to the classroom.

“I think there’s a misperception that teachers unions are preventing us from returning to school when in actuality they’re not,” he said. “They may complain and they may not want to go back, but there’s nothing they can legally do to stop us from going back to school for full-time learning.

“They already have employment contracts …that require them to report to work, regardless of what that learning model looks like.”

Furthermore, vaccines for teachers are not required for full-time in-person instruction because there’s nothing in the CDPH guidance that says teachers must be vaccinated, Davison said.

“The state law would say you can’t wait for that; you have to reopen now,” he said. “You can do your best to offer teachers vaccines if you can, but there’s no requirement that you can’t reopen until you get teachers vaccinated.”

School districts can’t develop their own set of conditions for when to reopen, based on teacher vaccinations or air filtration or anything else that some school districts believe they must have in place before it’s safe, he said.

“Our interpretation is that state law requires them to reopen and they can’t come up with their own rules,” he said.

Student stress

Plaintiffs are 11 parents from five north San Diego County school districts who relate horrifying stories of the appalling deterioration in their children’s mental, emotional and even physical states due to the nearly one full year of school closure and distance learning – in addition to the academic setbacks the children have experienced.

Complaints have been raised by six parents from San Dieguito, two from San Marcos, and one parent each from the Poway, Carlsbad and Oceanside school districts.

In common were many stories of students formerly excelling in school, with strong learning programs and active social lives, who are now failing courses and despondent. The children were described as being overwhelmed, tearful, moody, lethargic, withdrawn, anxious, afraid, hopeless, isolated and even suicidal.

“[D]uring distance learning, she is on the computer for ten to twelve hours a day, which has caused feelings of isolation, loneliness, lack of motivation, and anxiety,” wrote one San Dieguito parent of her daughter.

Another San Dieguito parent wrote that their child’s “anxiety recently increased after one of her teachers told the students that she will die from COVID-19 if she is forced to teach in-person.”

“Before March 2020, she was very outgoing, happy, and social,” related a third San Dieguito parent about their daughter. Six months later, “[she] grew sad, withdrawn, melancholy, angry, and lethargic, and started spending all day in bed.” Two months ago the parent found an empty bottle of alcohol in her bedroom.

A fourth San Dieguito parent wrote about their daughter who was “a competitive athlete who was extremely social, dedicated, and conscientious” before school closed in March 2020. In October, she “stopped eating regular meals and started reporting dark thoughts and urges to hurt herself.” Today, “she spends most of her days in bed, often curled up in a fetal position and crying uncontrollably. Her therapist attributes the onset of her mental health issues to distance learning.”

Another San Dieguito parent “watched his once confident and cheerful daughter skulk through the house daily with a sad, angry, or sometimes vacant face, and she exhibited signs of sub-clinical depression.”

Parents from the other districts describe similar issues with their children of listlessness and declining grades during remote learning, with several reporting attempted suicides.

Injunction

The intent of the lawsuit is to request an emergency preliminary injunction to invalidate the 2021 Framework and prevent the state from enforcing the rules right away, and then let the suit work its way through the court system to receive a permanent injunction, Davison said.

The hope is that the judge will grant a preliminary injunction on the probability that the complaint is sound, and then schedule a hearing.

The 11 plaintiffs are not requesting monetary damages and are only asking to reopen schools.

“We’re just asking for that remedy, that we need to get our kids back in school for their academic health, their mental health, their physical health,” he said.

Back in March 2020 at the start of the pandemic crisis, Gov. Newsom reasonably exerted his authority by issuing executive orders to protect public health. But now, 10 months later, using executive powers is an over-reach, the plaintiffs’ lawyers contend.

The process related to school shutdowns and reopening requirements needs to go through the normal legislative process and should no longer be issued by executive edict.

“The harm that has been done to students over the past 11 months is a direct result of the failure of policy to protect children,” reads a statement from the Parent Association which represents parents from seven north San Diego County school districts. “Otherwise healthy and happy students have experienced trauma related to extended school closure.”

“I think at this point the tide has turned and most people realize we should be opening schools and not trying to close them,” Davison said.

Opinion columnist and education writer Marsha Sutton can be reached at suttonmarsha@gmail.com.