O.C. Board of Education to sue Gov. Newsom over K-12 school mask mandate

The Orange County Board of Education — which last year unsuccessfully sued Gov. Gavin Newsom to reopen schools for in-person instruction — has voted to challenge him again over a state mandate requiring K-12 students to wear masks in classrooms and other indoor campus facilities, saying the rule is a burden on children.

The decision to sue comes as Orange County’s 28 school districts — along with districts throughout the state — are hashing out masking enforcement strategies and other safety policies as the school year begins. How districts choose to enforce the rule on campus is up to them.

In a 4-0 closed-session vote, the board approved a legal challenge that targets the governor’s emergency rule-making powers, which includes the recent school mask mandate issued as California schools are fully reopening for in-person learning against a troubling coronavirus uptick fueled by the highly contagious Delta variant. The surge in cases has prompted Los Angeles and Bay Area counties to mandate indoor masking, regardless of vaccination status.

The board called the governor’s and executive agencies’ use of emergency decrees a violation of “constitutional and statutory law,” referring to the latest student mask rule as a burden that “compounds the harm to California’s children previously caused by prior school closures and unwarranted masking requirements.”

The California Department of Public Health said the lawsuit is a distraction from COVID-19 mitigation efforts.

“California’s COVID-19 prevention strategies are the best way to fully open our schools while protecting students and staff, and the state’s guidance fully aligns with the CDC and the American Academy of Pediatrics,” the department told The Times. AAP has previously said that universal masking is key to reducing transmission largely because a significant number of students are not yet eligible for a vaccine.

“Our top priority and singular focus remains ensuring that the return to in-person learning for all students is successful this fall. These lawsuits are a disappointing distraction from a common goal — getting kids back into schools safely and limiting the spread of COVID-19,” the department said.

The Orange County board did not present any data that showed adverse effects of masking on children, or acknowledge public health studies that have shown masking reduces the spread of the virus. Board members disputed that there is a scientific basis for masking schoolchildren.

“Putting aside for the moment, the lack of sound, medical or scientific basis of the governor’s requirement to mask school children — who in general are neither at risk from COVID-19 nor likely to spread it — and putting aside the lack of any thoughtful well-considered transparent balancing of substantial harms of forced masking of juveniles against the reported benefits, the governor and the state level administrative agencies do not have the power to continue the state of emergency indefinitely,” the board said.

Board members Mari Barke, Tim Shaw, Lisa Sparks and Ken Williams were present for the Tuesday vote. Board member Beckie Gomez had departed before the vote.

While children have largely escaped coronavirus infections, it’s still possible for a child to contract and spread the virus. And while cases of a multisystem inflammatory syndrome — known as MIS-C — that has infected some children exposed to the coronavirus are rare, they can be serious.

Last August, the Orange County board sued Newsom to reopen schools that had been closed because of COVID-19. A petition went to the state Supreme Court asking it to review the case, but was ultimately denied.

The lawsuit will probably be filed next week, and according to Nada Higuera, an attorney with the firm representing the case,there is no evidence that the decision was prompted by school district officials’ concerns. Board member Williams concurred, adding that the opinion of residents was key to the decision.

The board is an advisory body and does not have the authority to implement rules over the county’s school districts

“It doesn’t matter what a school district wants — it matters what parents want,” Williams said. “Not educrats, not administrators — but constituents.”

Some school districts are still sorting out logistics around masking enforcement before the start of the new semester. Capistrano Unified School District, for example, said it is still reviewing state guidance and working out plans ahead of the Aug. 17 start date.

Others have a strategy in place. Nearby Santa Ana Unified School District, for example, will require masking indoors, allowing for medical exemptions, while offering a virtual learning alternative for those who want to stay away from campus or forgo a mask.

Unofficial survey data show that roughly 11% of the Santa Ana district families want their children to continue virtual learning, chief communications officer Fermin Leal said. That could be due to concerns over the Delta variant or perhaps mask policies, though there has not been much mask pushback.

“In our community, we found that mask wearing was not an issue for us,” Leal said. Santa Ana was one of the regions hit hardest by COVID-19. “People here tend to be more on the cautious side.”

Irvine Unified School District is also enforcing masking indoors, while offering virtual alternatives to meet student needs.

At Newport-Mesa Unified District, the current policy is similar: Indoor masking will be required, and any issue that arises will prompt a discussion with the student and parent. Virtual learning could be an alternative for students who decline to wear a mask, public relations officer Annette Franco said, but most are opting for in-person instruction.

Orange County has long pushed against COVID-19 restrictions throughout the pandemic, and residents’ opposition to face covering rules contributed to the implementation of the statewide mandate in June last year.

That month, the county’s health officer, Dr. Nichole Quick, resigned after residents vehemently challenged her mask mandate, leading to at least one death threat.

Dr. Clayton Chau, then the county’s acting public health officer, dropped Quick’s mandate because no statewide order existed, a decision that was believed to be a factor in the county’s surge in cases. But shortly afterward, Chau said he spoke directly to state officials urging them to issue a statewide order.

“I personally was the one who talked to the state about having it as a mandate,” Chau said last August. “If you remember correctly, after I pulled back the order … a week later, the governor came down with a mandate.”