State Supreme Court orders Newsom to respond to Orange County Board of Education petition to reopen schools

By Sara CardineStaff Writer

Aug. 27, 2020 7:34 PM PT

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 on Monday 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 watch list to resume distance learning in the 2020-21 school year.

One of the documents filed Friday by Murieta-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.

“Gov. Gavin 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.

Lead attorney Robert Tyler, whose firm is representing the Board of Education on a pro bono basis, said Thursday 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 4-0 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 TK-6 classes to return to campuses. In a week nearly 50 institutions, mostly small private and charter schools had applied for waivers.

The Orange County Health Care Agency on Thursday reported 369 new coronavirus infections and 29 deaths from COVID-19, the disease caused by the virus, bringing countywide cases to 47,459 and total fatalities to 947.

Some 372 people are currently being hospitalized, 112 of them in intensive care units. Orange County’s average infection rate is 82.1 per 100,000 residents. The testing positivity rate is 5%, well below the state threshold of 8%.

Since the board’s decision to sue the state, Orange County has been removed from the state watch list 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 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 state Supreme Court could potentially keep schools open, should Orange County be placed back on the state’s monitoring list. It could also potentially reign in Newsom’s emergency executive powers which, he said, are currently 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.”

On Wednesday, Barke joined Board President Ken Williams and trustees Tim Shaw and Lisa Sparks in a press conference outside the panel’s Costa Mesa office to share news of the court’s recent action. They said their aim was not to force students back to school but to give families a choice.

The event was attended by hundreds of community members, many who spoke on the importance of kids returning to schools. Most in attendance could be seen without facial coverings, despite the state’s mask order.

“It was amazing,” Barke said of the turnout. “People came up to me afterward and thanked me. There are a lot of families who are just ready to go back to school.”

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