A San Diego Superior Court judge has ordered the complete dismissal of the lawsuit initiated against Gov. Gavin Newsom, the California Department of Public Health and other state health officials by two parent groups (Let Them Breathe and Reopen California Schools) over the requirements of the COVID-19 Public Health Guidance for K-12 Schools in California, 2021–22 School Year, issued July 2021 by CDPH. The guidance, which was last updated on Oct. 20, addresses health and safety measures, including testing strategies, quarantine protocols and mask mandates. Currently, all students are required to wear masks indoors in K-12 schools, regardless of vaccination status, with exemptions per CDPH face mask guidance. The plaintiffs alleged a slew of violations of the state Constitution, the Emergency Services Act (ESA, Government Code section 8550-8669.7) and some provisions of the Education Code.
As a preliminary matter, Gov. Newsom and the other defendants responded by filing a demurrer — a legal process that tests the legal sufficiency of a party’s pleading in a lawsuit. Generally, a demurrer asserts that even if all the factual allegations in a complaint are true, the facts pled are not sufficient to establish a valid cause of action. When a defendant’s demurrer is sustained, the plaintiff will be required to correct the identified defect before the lawsuit can proceed. However, if the defect cannot be cured, the court will dismiss the complaint entirely (without leave to amend). On the defendants’ demurrer, the court determined that the defect in the plaintiffs’ complaint cannot be cured and dismissed the lawsuit without leave to amend.
In the demurrer, defendants argued that it is impossible for the state defendants to be held responsible for any injury to the plaintiffs for those portions of the guidance that are purely recommendations (i.e., testing strategies and quarantine protocols), since school districts have the local authority to decide whether and how to implement the recommendations. Plaintiffs opposed the demurrer by asking the court to consider all pertinent aspects of the guidance, including those couched as “recommendations,” as mandates. In its ruling, the court agreed with the defendants, and limited the rest of its analysis to determining whether the mask mandate portion of the guidance can form the basis for plaintiffs cause of action.
Specifically, plaintiffs alleged that the Governor’s March 2020 declaration of a state of emergency under the ESA and CDPH’s issuance of the guidance were legislative functions exercised in violation of the California Constitution. This argument was, in the court’s view, essentially a challenge to the constitutionality of the ESA and was rejected as contrary to the decision of a California appellate court that had determined the ESA constitutional. Plaintiffs’ complaint also alleged that, by preventing students from returning to in-person instruction unless they wear a mask at all times while indoors and submit to COVID-19 testing, the guidance violates Article IX of the California Constitution, which provides for a system of common schools. On this too, the court concluded that plaintiffs failed to allege how the mask mandate in the guidance would undermine the creation, implementation and/or perpetuation of the school system or interfere with a student’s right to attend school. Rather, the court recognized the state’s legitimate interest in protecting health and safety by mandating public health measures, including masking, and ruled that the guidance is narrowly tailored to advance that interest. The court also observed that the guidance is less burdensome than vaccine requirements that have been repeatedly upheld since first challenged in 1904.
In making this ruling, the court stated that the imposition of the mask mandate, and any related burden on student’s educational opportunities, did not sufficiently implicate a constitutional right such that the court had to strictly review the mandate. Rather, according to the court, the state defendants needed to show only that there was some rational basis for the mandate (i.e., protection of the public health and the health of students). Nonetheless, the court held that the mandate would have survived even a stricter level of scrutiny given the compelling interest in slowing the spread of COVID-19 and minimizing the impact of COVID-19 on children.
With regard to violations of the Education Code, plaintiffs alleged that the guidance’s required exclusion of students for failure to mask was a violation of Education Code section 48900, which prohibits suspension and/or expulsion of students except for specified reasons. The court disagreed and distinguished between exclusion for public health reasons from suspension and expulsion for disciplinary reasons. Plaintiffs also alleged that the guidance violated Education Code sections 51746 and 51747 (independent study) because it forced students into independent study without compliance with the statutory requirements. The court stated that there was no language in the guidance that required, directed or otherwise authorized schools to force students into independent study programs due to noncompliance with the mask mandates.
In reporting on the decision, plaintiffs have used this language to claim that the court’s decision means that local educational agencies cannot enforce the mask mandate on the premise that LEAs cannot require students who will not wear masks to enroll in independent study. While the court is accurate that the guidance does not specifically require LEAs to place students who will not wear masks in independent study and only requires access to an “alternative educational program,” the court’s decision clearly upheld the mask mandate, making plaintiffs’ argument that students may ignore the mask mandate inconsistent with the court’s ruling.
It is also important to note that Assembly Bill 130, the bill that made sweeping changes to the independent study statutes in an attempt to overhaul independent study before its use this year by students who are unable for medical reasons to wear a mask or otherwise opposed wearing one, is the current subject of a temporary restraining order issued in San Diego County. CSBA will provide information about this lawsuit in upcoming publications.
It is not known whether the plaintiffs, who filed a complaint that was dismissed by the court for failing to state even one cause of action that could be heard on its merits, will appeal the court’s ruling or file a similar complaint in another county. CSBA’s Legal Department is tracking this case and will update members on any future developments.
The court’s Minute Order is available here.