Board of Education Sues California Governor Over School Mask Mandates

Board of Education Sues California Governor Over School Mask Mandates
Parents and students gather to protest wearing masks in front of the Orange County Department of Education in Costa Mesa, Calif., on May 17, 2021. (John Fredricks/The Epoch Times)
Jack Bradley

The Orange County Board of Education (OCBE) voted during an Aug. 3 special session to sue Gov. Gavin Newsom for extending the state of emergency and mandating masks for students during the next curricular year.

The board’s decision came after Newsom announced an extension to the state of emergency, requiring a mask mandate for students in grades K–12. Trustee Rebecca Gomez was absent during the vote.

“I want to do what’s in the best interest of the kids in our community,” OCBE President Mari Barke told The Epoch Times.

OCBE Vice President Ken Williams told The Epoch Times that the board fears “this could be a repeat of last year, and the attempt is to remove—by the state Supreme Court—the abuse of the emergency power, that Newsom is usurping.”

“There is no emergency that exists that he should be able to use the emergency powers to mandate such a statewide decree,” Williams said.

Around this time last year, the board filed a lawsuit against Newsom and the California Department of Public Health officer for mandating schools to instruct virtually.

“We had concerns last year, we still have those concerns now, and now this time is different,” Williams said.

“There is no run on hospital care. There are lots of emergency rooms and hospital rooms available for care. We’ve reached herd immunity. We have, I think close to two-thirds of America already vaccinated ... Now, the time period is very different than last year.”

Williams said it’s the “children and the families” that are being negatively impacted by the governor’s orders.

The board contracted the Murrieta-based legal team Tyler & Bursch for the newly filed lawsuit.

Robert Tyler, one of OCBE’s legal representatives, said Newsom is “no longer entitled to cling desperately to the state of emergency,” and could “not force children to wear face masks in school.”

“The law, under the Emergency [Services] Act, prohibits the state of emergency from continuing indefinitely. It actually requires that it be terminated at the earliest possible moment,” Tyler told The Epoch Times.

Tyler said the basis of the state of emergency was to prevent flooding the hospital system to ensure that health care was available.

“The governor has come out and publicly declared how we’ve curbed the threat to the hospital system. The cases are down; deaths are down. And in addition to that, the governor in legal arguments ... actually made all of these arguments, effectively the same as saying there’s no longer an emergency.”

In another case, earlier this year—Godspeak Calvary Chapel v. Ventura County and the State of California—the State Attorney General said the case should be dismissed on grounds that “[one,] the hospital system is no longer threatened by the coronavirus. Two, the case rates are way down. And three, that there are therapeutics that are now available and useful in the treatment of coronavirus,” Tyler said.

“He’s still clinging on to a state of emergency. ... He can’t hang on to it indefinitely, because that’s a complete violation of how our system is supposed to operate with our legislature—having public hearings, establishing law through the normal process, and then sending it to the governor for his signature or veto. It’s not to be flipped on its head where the governor, acts as a dictator, creating a system of laws that run indefinitely.”

OCBE issued a statement during the special session emphasizing the board’s role in “keeping our children safe at school and free from policies or practices that will cause them harm. When necessary, the board will fight to protect the health, safety, and welfare of our county’s kids at school.”

“Unfortunately, with the governor’s most recent action to force Orange County’s children, even those as young as 5 and 6 years old, to endure an academic year covering their faces for hours on end, the time to fight has come again,” the statement reads.

The Centers for Disease Control and Prevention on July 9 updated its guidance for schools, advising the unvaccinated to wear masks.

However, the California Department of Public Health said the state will continue to prioritize mask-wearing for all teachers and students indoors.

“There’s no substitute for in-person instruction, and today’s CDC guidance clearly reinforces that as a top priority, issuing recommendations for how schools throughout the country can get there,” Dr. Tomás Aragón, director of the California Department of Public Health and state public health officer, said in a press release. “Here in California, we’ll get there through continued masking and robust testing capacity.”

Newsom’s office didn’t respond to a request for comment by deadline.