The Orange County Board of Education announced Wednesday that it has decided -- by a 4-0 vote -- to file a lawsuit against Gov. Gavin Newsom and the California Public Health Officer to seek a court order that sets aside the state orders preventing public schools from holding in-person classes and resuming services on campus.
The vote came during a closed session Tuesday night.
The California Supreme Court has interpreted the California Constitution to require that California school children have a constitutional right to substantially equal opportunities for learning, and the governor's order -- issued to prevent further spread of the coronavirus -- will unequally burden the most underprivileged families of California, the bard's lawyers said in a statement.
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The attorneys, Tyler & Bursch, LLP of Murrieta in Riverside County, said they agreed to represent the board pro bono "to protect the vulnerable children in California."
The lawsuit will also be supported by the nonprofit legal organization Advocates for Faith & Freedom. Attorneys expect to file the lawsuit sometime next week.
"California children have a constitutional right to both an education and equal protection under the law. The governor denied them these rights and did so without adequately considering the disparate impact these restrictions would have on the disadvantaged,'' said attorney Jennifer Bursch of Tyler & Bursch, LLP. "We brought this lawsuit to protect the single mom and her children, children whose parents do not read or write English, and children with special needs.
"The governor's ban on in-person learning will cause tens of thousands of kids to fall through the cracks and, in many cases, will be harmed for life."
Jesse Melgar, a spokesman for the governor's office, said, "As the governor has explained, science drives the state's action in this pandemic. Courts have repeatedly upheld the governor's emergency authority to issue orders protecting public health in the face of this devastating virus. We are confident that will again be the case here."
Attorney Robert Tyler acknowledged the difficulty in overcoming the governor's authority during an emergency.
"It is a high bar," Tyler told City News Service. "But the science is coming to continually prove that there are plenty of options, plenty of solutions that don't include closing schools entirely and shutting down society."
Tyler said the goal of the lawsuit is to provide options for parents.
"The structure presently of having this wholesale shutdown is bad for kids, bad for families, particularly those in lower socio-economic classes," Tyler said.
Some families do not have access to the internet or have devices needed to participate in online classes, Tyler said.
"These kids, they're not having the same opportunity as other kids might get in other districts where internet access is great, each kid has a laptop at home,'' Tyler said. ``I've heard of Spanish-speaking families who are obligated to make sure their kids are doing their homework and helping them do it, yet they don't speak English and all the homework is in English.''
Orange County Superintendent Al Mijares criticized the move.
"On the heels of recommending students return to school without face coverings or social distancing, a majority of the five-member OC Board of Education has decided to file a lawsuit against the state public health officer and Gov. Gavin Newsom over California's school reopening plans," Mijares said. "I am disappointed by this latest legal action, but not surprised. This lawsuit continues the pattern of a highly litigious board majority that seems to have no qualms about diverting time, energy and financial resources from students and programs to satisfy their own ideological interests."
Mijares said local school boards and superintendents will "continue to approve and implement their own plans based on the guidance of state and local public health agencies and needs of their communities.''
Mijares said the county's Department of Education "is working to support them every step of the way, and I am optimistic that we can unite as a county to return our students to safe and equitable learning environments.''
The Orange County Board of Education earlier this month approved a non-binding recommendation for reopening schools that would not require physical distancing or wearing masks. One of the county's largest districts, Santa Ana Unified, almost immediately rejected that advice, as did other school officials.
"The board majority's recommendations are not binding and La Habra City School District will not open our schools under these conditions," said that district's superintendent, Joanne Culverhouse. "The health and safety of our staff and students will guide the decisions we make for reopening our schools."