School board, parent groups sue Newsom over California mask mandate

At least one California school board and two parent groups are suing Gov. Gavin Newsom in response to his statewide mask mandate, which includes requiring K-12 students to wear masks indoors during the school year.

The Orange County Board of Education filed a petition with the California Supreme Court asking it to declare an immediate end to Newsom’s state of emergency, using his own arguments made during a hearing in the case, County of Ventura v. Godspeak Calvary Chapel.

Newsom’s attorneys argued, “the State no longer faces a threat that the State’s health care system will be overwhelmed. To the contrary, all available evidence suggests a resurgence of cases, hospitalizations and deaths to the level that prompted the Blueprint [for a Safer Economy last August] and the other now-rescinded public health directives at issue is unlikely to occur in light of the percentage of eligible Californians who are fully vaccinated.”

Robert Tyler, counsel for Orange County Board of Education, said, “The Governor can’t have it both ways. He can’t claim victory over the emergency of Covid-19 in one court and immediately claim an emergency exists in another just so that he can keep the people of California in a headlock.”

Scott J. Street, another attorney for the Orange County Board of Education, who successfully litigated a similar case against the state last year after state health officials arbitrarily closed gyms, added, “This Petition is not about masks, vaccines, or any other specific policy issue. It concerns fundamental issues of governance that are the foundation of American self-government and which cannot exist in an indefinite state of emergency."

The Emergency Services Act states that an emergency can be declared when there exists “extreme peril to the safety of persons and property within the state.” The governor must terminate a state of emergency “at the earliest possible date that conditions warrant,” the board requested of the court.

“This lawsuit seeks to restore democracy in California after a 17 month suspension,” Robert F. Kennedy Jr., board chair of Children’s Health Defense, said in a statement. Children’s Health Defense is representing the board pro bono along with Tyler & Bursch, LLP and Advocates for Faith & Freedom.

“Californians are tired of being governed by unelected technocrats ruling us by arbitrary dictates with no scientific basis in violation of our constitutional rights to transparency, public participation, and due process,” Kennedy Jr. said. “Government best serves public health when citizens participate in the regulatory process to craft policies annealed in the cauldron of debate as the regulatory system provides.”

Of the mandate, the board states on its website, "Putting aside for the moment the lack of a sound medical or scientific basis for the governor's requirement to mask school children – who in general are neither at risk from COVID-19 nor likely to spread it – and also putting aside the lack of any thoughtful, well considered and transparent balancing of the substantial harms of forced masking of juveniles against the purported benefits, the governor and his state-level executive agencies do not have the power to continue the state of emergency indefinitely, and to continue to suspend the Administrative Procedure Act to circumvent normal agency rule making requirements."

In July, two parental groups, Reopen California Schools and Let Them Breathe, sued Newsom and several other officials in the North San Diego County Division of the Superior Court of the State of California.

They asked the court to grant "a temporary restraining order and preliminary and permanent injunction" to restrain and prevent Newsom "from applying and enforcing the July 2021 guidance related to mandatory masking, quarantines and COVID-19 testing, and from issuing any new order, directive, guidance, rules or 'framework' aimed at preventing the spread of COVID-19 that would inhibit learning, cause harm, and prevent any student from reasonably enjoying the benefits of full-time, in-person instruction."

They asked the court to declare Newsom’s order "invalid and unlawful,” arguing that “masking students is unnecessary, ineffective, and harmful to their mental, physical, social, and emotional wellbeing.”

In July, the California Department of Public Health issued a guidance requiring public schools to enforce a mask requirement for all students, faculty and teachers.