Federal judge schedules trial on fight against school closures

Days after denying a temporary restraining order requested by parents fighting against the state's school closure mandate, a federal judge said they could plead their case at the end of the month at a joint permanent injunction hearing and bench trial.

Gov. Gavin Newsom ordered schools closed for the fall semester last month after several counties reported a surge in COVID-19 infections. Private schools in counties on the state's monitored list are also subject to the order. Parents and students sued the state over the remote learning mandate. Matthew Brach et al. v. Gavin Newsom, Xavier Becerra, et al., 2:20CV06472 (C.D. Cal., filed Jul. 21, 2020)

In an unexpected move during Monday's status conference, U.S. District Judge Stephen V. Wilson announced he would hold a joint preliminary injunction hearing and bench trial on the merits of the case. A permanent injunction will also be considered on Aug. 31, according to the judge's order.

Plaintiffs' attorney Harmeet K. Dhillon said the state has not addressed expert declarations and scientific data on the harm school closures would have on students, especially those with disabilities. The mandate affects more than 6 million students.

"Judge Wilson's decision is proof that the parents who are fighting to get their kids back into the classroom are gaining momentum," said Dhillon, chief executive officer of the Center for American Liberty. "Parents should be commended for taking a stand against the California government's unconstitutional mandate and heartened the court is going to rule on the merits very soon."

The lawsuit over reopening schools is the latest fight over COVID-19 shutdowns, from the operation of small businesses, churches, beauty salons, protests and beaches that Dhillon waged since March. While federal judges have sided with the government in these actions citing the public health emergency, Dhillon's fight has frustrated much of the state's closure orders.

Wilson asked both sides Monday what effect his injunction would have on school boards and counties. The government responded if there is a county-wide order, it would be controlling. Otherwise the area's school board's position will control.

Dhillon said her clients have the same view, except for one addition: If there is no county-wide order, then private schools and charter schools will be self-governing on the issues.

"The judge is clearly engaged in these issues. More than 800 pages of documents have been filed in this case, so it's a lot for him to look at in a short time," Dhillon said. "He's already drilling down on proposed remedies, and what the impacts would be. This is all interesting because we aren't forcing any school to be open per se. We just want the decision made at the local level where it belongs."

The state opposed reopening schools, saying 150,000 of the 382.2 million American population have died and more than 4.6 million have been infected. The state argued the parents rely on inaccurate, outdated beliefs that young children don't spread COVID-19.

"Yet, COVID-19 knows no age boundaries. People of all ages, including children, are susceptible to the disease. There is currently no proven vaccine or widely effective treatment," Deputy Attorney General Jennifer A. Bunshoft wrote in her opposition.

Even without Jacobson v. Massachusetts 197 U.S. 11, 25 (1905), plaintiffs don't articulate a cognizable violation of their constitutional rights, Bunshoft argued. Nor did the parents establish there is a fundamental right to a physical, in-person education, Bunshoft added.

The mandate doesn't halt learning altogether. Instead, it implements alternative, distance learning for counties where there is high rate of community spread, Bunshoft wrote.

"As every federal court to consider this question with respect to California's orders has concluded, the governor's current emergency order and the related public health orders and guidelines regarding school reopening are a legitimate exercise of the state's police powers and are entitled to deference by this court," the opposition said.