Court filing
Complaint for declaratory and injunctive relief — Brach v. Newsom
Filed July 21, 2020 in Brach v. Newsom; one of 10 filings from this case.
Record facts
| Court | U.S. District Court for the Central District of California, Western Division |
|---|---|
| Filed | 2020-07-21 |
U.S. District Court for the Central District of California, Western Division · No. 2:20-cv-06469-CBM-PD · Doc. 1 · 2020-07-21 · Docket on CourtListener
Full text
1
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
HARMEET K. DHILLON (SBN: 207873)
harmeet@dhillonlaw.com
MARK P. MEUSER (SBN: 231335)
mmeuser@dhillonlaw.com
GREGORY R. MICHAEL (SBN: 306814)
gmichael@dhillonlaw.com
DHILLON LAW GROUP INC.
177 Post Street, Suite 700
San Francisco, California 94108
Telephone: (415) 433-1700
Facsimile: (415) 520-6593
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT FOR
THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
MATTHEW BRACH, an individual;
JESSE PETRILLA, an individual;
LACEE BEAULIEU, an individual;
ERICA SEPHTON, an individual;
KENNETH FLEMING, an individual;
JOHN ZIEGLER, an individual;
ALISON WALSH, an individual;
ROGER HACKETT, an individual;
CHRISTINE RUIZ, an individual; and
Z.R., a minor;
Plaintiffs,
v.
GAVIN NEWSOM, in his official
capacity as the Governor of California;
XAVIER BECERRA, in his official
capacity as the Attorney General of
Case No.:
COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 1 of 35 Page ID #:1
2
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
California; SONIA Y. ANGELL, in
her official capacity as the State Public
Health Officer and Department of
Public Health Director; and TONY
THURMOND, in his official capacity
as State Superintendent of Public
Instruction and Director of Education
Defendants.
Today, education is perhaps the most important function of state and local
governments. Compulsory school attendance laws and the great
expenditures for education both demonstrate our recognition of the
importance of education to our democratic society. It is required in the
performance of our most basic public responsibilities, even service in the
armed forces. It is the very foundation of good citizenship. Today it is the
principal instrument in awakening the child to cultural values, in preparing
him for later professional training, and in helping him to adjust normally to
his environment. In these days, it is doubtful that any child may reasonably
be expected to succeed in life if he is denied the opportunity of education.
Such an opportunity, where the state has undertaken to provide it, is a right
which must be made available to all on equal terms. – Chief Justice Earl
Warren, Brown v. Board of Education, 347 U.S. 483, 491 (1954).
Plaintiffs Matthew Brach, Jesse Petrilla, Lacee Beaulieu, Erica Sephton, Kenneth
Fleming, John Ziegler, Alison Walsh, Roger Hackett, Christine Ruiz, and her minor
child, referred to by his initials, Z.R., by their attorneys, Dhillon Law Group, Inc., for
their claims against Defendants Gavin Newsom, in his official capacity as the Governor
of California; Xavier Becerra, in his official capacity as the Attorney General of
California; Sonia Y. Angell, in her official capacity as the State Public Health Officer
and Department of Public Health Director; Tony Thurmond, in his official capacity as
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 2 of 35 Page ID #:2
3
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
State Superintendent of Public Instruction and Director of Education, allege and show
the Court as follows (this “Complaint”).
NATURE OF ACTION
1.
Defendants have ushered in a new wave of COVID-19 restrictions, this
time barring in-person schooling for most children in California. In Defendants’ rush to
enact these new restrictions, they have placed politics ahead of the wellbeing of
children, and children’s important—indeed, fundamental—interest in receiving equal
access to meaningful education. Defendants’ arbitrary restrictions on in-person
schooling effectively deprive Plaintiffs’ children, and millions of other children across
California, of the opportunity for meaningful education and the attendant hope for a
brighter future.
2.
This Action presents facial and as-applied challenges to the Governor of
California’s May 4, 2020 Executive Order N-60-20 (“State Order”), attached here as
Exhibit 1, which requires Californians to obey all State Public Health directives and
orders, including the State’s July 17, 2020 “COVID-19 Industry Guidance: School and
School-Based Programs,” attached here as Exhibit 2.
3.
This Action is brought pursuant to 42 U.S.C. § 1983, on the grounds that
the State Order and associated guidance and directives, and Defendants’ enforcement
thereof, violate Plaintiffs’ constitutionally and federally protected rights, including
specifically: (1) the right to equal protection, free from arbitrary treatment by the State
(U.S. Const. amend. XIV); (2) the right to procedural and substantive due process (U.S.
Const. amend. XIV); (3) the right to be free from federally-funded state action resulting
in a disparate impact on racial minorities (Title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d, et seq.); and (4) the right to equal and meaningful access to education,
free from arbitrary state action resulting in a disparate impact on those with disabilities
(Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq.; Title II of the
Americans with Disabilities Act of 1990, 42 U.S.C. § 12131, et seq.; and Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq.)).
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 3 of 35 Page ID #:3
4
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4.
With the school year commencing in mere weeks from the date of this
filing, time is of the essence, and the Court should not hesitate to ensure that Plaintiffs’
fundamental interests in securing a meaningful education for their children are
preserved and protected from Defendants’ arbitrary actions.
JURISDICTION AND VENUE
5.
This action arises under 42 U.S.C. § 1983 in relation to Defendants’
deprivation of Plaintiffs’ rights as secured by the U.S. Constitution and federal law.
Accordingly, this Court has federal question jurisdiction under 28 U.S.C. §§ 1331 and
1343. This Court has authority to award the requested declaratory relief under 28
U.S.C. § 2201; the requested injunctive relief and damages under 28 U.S.C. § 1343(a);
and attorneys’ fees and costs under 42 U.S.C. § 1988.
6.
The Central District of California is the appropriate venue for this action
pursuant to 28 U.S.C. §§ 1391(b)(1) and (2) because it is the District in which
Defendants maintain offices, exercise their authority in their official capacities, and will
enforce the State Order; and it is the District in which substantially all of the events
giving rise to the claims occurred.
PARTIES
7.
Plaintiff Matthew Brach is a resident of Rancho Palos Verdes, California.
He is suing in his individual capacity and not as an elected member of the Board of
Education for the Palos Verdes Peninsula Unified School District. He is the father of
two children. His sixteen-year-old son and thirteen-year-old daughter are students in the
Palos Verdes Peninsula Unified School District. His son is entering his senior year and
will suffer academically as a result of the denial of personal interaction with teachers
and positive academic role models. His son’s learning style requires him to be able to
ask questions of and interact with his teachers and to learn collaboratively with peers.
His daughter is already suffering emotionally from being isolated from her learning
community.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 4 of 35 Page ID #:4
5
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8.
Plaintiff Jess Petrilla is a resident of Mission Viejo, California. He has a
son who is about to enter first grade. Last school year, when his son was in kindergarten
and transitioned from in-classroom to distance learning, Petrilla noticed a significant
decline in his discipline and engagement. His son’s enthusiasm for learning declined,
and his son became restless. Petrilla’s wife has been forced to take time off of work in
order to oversee her son’s education. The Petrillas are concerned about the negative
effects that this prolonged absence from the social aspects of structured education will
have on the future development of their son.
9.
Plaintiff Lacee Beaulieu is a resident of La Jolla, California. She has two
children, a daughter who is entering the ninth grade at a private school and a son who is
about to enter 5th grade in the San Diego Unified School District. One of her biggest
challenges with distance learning was trying to balance screen time. Her son’s doctor
has recommended that he not spend more than two hours a day in front of computer
screens. With distance learning, this instruction has been almost impossible to honor.
She is concerned that if her son is going to keep up academically, this could come at a
cost of brain development issues as a result of him spending too much time in front of
computer screens. She found it unrealistic to expect her son to follow the daily/weekly
schedule on his own. If she was tied up with work, her son was unable to proceed with
his daily lesson plans. While her daughter had more interaction with her teachers,
because of the lack of labs, she was unable to properly do science experiments.
Beaulieu believes that the increased screen time has had a negative affected on both of
her children. She has noticed that they have difficulty with sleep schedules, both are
depressed, and their discipline in completing school assignments has decreased. The
enforced deprivation of personal contact with their peers has also affected these
children negatively.
10.
Plaintiff Erica Sephton is a resident of Murrieta, California. She has a
daughter who is about to enter transitional kindergarten at Saint Jeanne de Lestonnac
Catholic school in Temecula. Sephton understands that her daughter needs social
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 5 of 35 Page ID #:5
6
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
interaction with her fellow classmates, something that she cannot get at home doing
distance learning. Sephton is aware of the risks of COVID-19 and believes that these
minor risks for children do not outweigh the harm that her daughter is suffering by
being deprived of her in-person education. While the school, the teachers and the
students are ready to resume school instruction in the classroom with proper
precautions, Sephton believes that they are being held back because of positive test
results in other parts of the county and not because of any substantial risk in her
community. She does not understand why her daughter is allowed to spend all day in a
childcare facility, but cannot spend the same period of time in a private school,
learning.
11.
Plaintiff Kenneth Fleming is the father of a public high school senior in
Long Beach, California. His daughter has maintained straight A’s on her report card for
the last three years. She is a student athlete with ambition to earn a sports scholarship to
attend her dream school. Plaintiff Fleming is concerned that online-only education,
which has not been awarding letter grades to students, adversely impacts his daughter’s
opportunity to compete for a college scholarship. He also believes that online-only
education does not assist his daughter either athletically or academically in preparing
for college.
12.
Plaintiff John Ziegler is a resident of Camarillo, California and is the father
of an eight-year-old girl enrolled in public school. When her school moved from in-
person instruction to an online platform during the Spring 2020 semester, her
educational development suffered. She fell behind in her academic progress. As a result
of the denial of in-person educational instruction, Plaintiff Ziegler’s wife is left with no
choice but to forgo her employment to stay home with their daughter.
13.
Plaintiff Alison Walsh is the mother of two children who were in the
Capistrano Unified School District during the 2019-2020 school year. When CUSD
moved to an online platform in the 2020 spring semester, her children’s education
suffered. Her children’s school did not offer her children any live instruction. Their
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 6 of 35 Page ID #:6
7
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
teachers merely sent work packets to the students to complete independently. In
preparation for the 2020-2021 academic year, Plaintiff Walsh enrolled her children in
private school to ensure that her children could receive academic instruction. Now with
Defendants’ guidance, even the private school is required to provide distance learning.
14.
Plaintiff Roger Hackett lives in Ventura County and has a son who will
attend a private middle school in Westlake Village, California. His son’s school has
made significant preparations for safe in-person instruction pursuant to the CDC and
local guidelines. This school is willing to offer both in-person and distance learning
options based on the preference of the parents, and is ready to safely reopen in-school
classes and non-contact athletics starting August 12. Plaintiff Hackett’s concern is that
online-only education will adversely impact his son’s academic and social
development. His son is frustrated by continual isolation from his academic community
and absence from school athletics. Even though Westlake Village has very few
COVID-19 positive cases, because it is in Los Angeles County which is on the state’s
watch list, this private school is being prevented from operating in compliance with
COVID safety guidelines and in accordance with the desires of the school, teachers,
parents, and students.
15.
Plaintiff Christine Ruiz is Hispanic and lives in Los Angeles County. She
has two sons who attend public school in the county, one of whom is Plaintiff Z. R.,
referred to herein by his initials. Both boys have been diagnosed with autism. Her 15-
year-old son, Z. R., attends high school, in moderate to severe special education classes.
Under normal circumstances, he has an entire team of special needs educated,
credentialed staff working hands on with him during the entire school day pursuant to
an Individual Education Program (“IEP”) mandated by law. As of March 16, 2020, he
has received no services as mandated by his IEP. While the school offered a Zoom
meeting, this did not work. Her younger son is in junior high school. He has been
placed in mild to moderate special education classes. The online class only lasted about
30 minutes a day, and he did not learn anything by clicking a few links and watching a
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 7 of 35 Page ID #:7
8
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
video. Her son is a hands-on learner. As a result of the school transitioning to online-
only education and not providing the request IEP services, Ruiz has had to hire an
educational tutor to assist her sons.
16.
Plaintiff Z. R. is a minor and, as such, is referred to herein by his initials.
Z. R. is the 15-year-old son of Christine Ruiz who currently attends high school. Z. R.
is Hispanic and takes moderate to severe special education classes as a result of his
autism.
17.
Defendant Gavin Newsom (“Newsom”) is made a party to this Action in
his official capacity as the Governor of California. The California Constitution vests the
“supreme executive power of the State” in the Governor, who “shall see that the law is
faithfully executed.” Cal. Const. Art. V, § 1. Governor Newsom signed Executive Order
N-60-20 (the “Executive Order”) on May 4, 2020. See, e.g., Ex Parte Young, 209 U.S.
123 (1908).
18.
Defendant Xavier Becerra (“Becerra”) is made a party to this Action in his
official capacity as the Attorney General of California. Under California law, Becerra is
the chief law enforcement officer in the State. Cal. Const. Art. V, § 13.
19.
Defendant Sonia Y. Angell, MD, MPH (“Dr. Angell”) is made a party to
this Action in her official capacity as the Director and State Public Health Officer. Dr.
Angell is sued herein in her official capacity to the extent that she is responsible for
providing official government guidance to the various industries that are allowed to
operate.
20.
Defendant Tony Thurmond, (“Thurmond”) is made a party to this Action
in his official capacity as State Superintendent of Public Instruction and Director of
Education. Thurmond is responsible for enforcing education law and regulations in
California.
///
///
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 8 of 35 Page ID #:8
9
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FACTUAL ALLEGATIONS
21.
On or about March 4, 2020, California Governor Gavin Newsom
proclaimed a State of Emergency as a result of the threat of COVID-19.1
22.
On or about March 19, 2020, California Governor Newsom issued
Executive Order N-33-20 in which he ordered “all residents are directed to immediate
heed the current State public health directives.”2
23.
On or about May 4, 2020, California Governor Newsom issued Executive
Order N-60-20 in which he ordered “All residents are directed to continue to obey State
public health directives, as made available at https//covid19.ca.gov/stay-home-except-
for-essential needs/ and elsewhere as the State Public Health Officer may provide.” Ex.
1.
24.
On July 17, 2020 Newsom announced a framework to reopening schools.3
25.
Under his plan, reopening hinges on not being on the county monitoring
list for two weeks.4
26.
“Schools and school districts may reopen for in-person instruction at any
time if they are located in a local health jurisdiction (LHJ) that has not been on the
county monitoring list within the prior14 days.”5
27.
The plan also includes a waiver procedure:
1 Available as of the date of this filing: https://www.gov.ca.gov/wp-
content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf.
2 Available as of the date of filing: https://www.gov.ca.gov/wp-
content/uploads/2020/03/EO-N-33-20-COVID-19-HEALTH-ORDER-03.19.2020-
002.pdf.
3 Available as of the date of filing:
https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/CO
VID-19/Schools%20Reopening%20Recommendations.pdf.
4 Available as of the date of filing:
https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/CO
VID-19/Schools%20Reopening%20Recommendations.pdf.
5 Id.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 9 of 35 Page ID #:9
10
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“A waiver of this criteria may be granted by the local health officer for
elementary schools to open for in-person instruction. A waiver may only be
granted if one is requested by the superintendent (or equivalent for charter
or private schools), in consultation with labor, parent and community
organizations. Local health officers must review local community
epidemiological data, consider other public health interventions, and
consult with CDPH when considering a waiver request.”6
28.
California is the only state in the U.S. that is mandating at the state level
that school districts not hold in-person classes, affecting millions of students, rather
than leave that decision to the individual school district.7
29.
California Department of Public Health (CDPH) has provided guidance to
similarly situated industries, namely camps8 and childcare9, allowing them to remain
open, but guidance for schools10 reveal that schools are subject to more stringent
standards that defy reason.
30.
Currently, there are 32 counties on the watchlist.11
31.
There are currently 5.9 million students K-12 in California.12
6 Id.
7 Available as of the date of filing: https://thehill.com/homenews/state-watch/508105-
heres-your-states-plan-for-reopening-schools.
8Available as of the date of filing: https://files.covid19.ca.gov/pdf/guidance-
daycamps.pdf.
9 Available as of the date of filing: https://files.covid19.ca.gov/pdf/guidance-childcare--
en.pdf.
10 Available as of the date of filing: https://files.covid19.ca.gov/pdf/guidance-
schools.pdf.
11 As of July 20, 2020, the following counties are on the watchlist: Alameda, Colusa,
Contra Costa, Fresno, Glenn, Imperial, Kings, Los Angeles, Madera, Marin, Merced,
Monterey, Napa, Orange, Placer, Riverside, Sacramento, San Benito, San Bernardino,
San Diego, San Joaquin, San Luis Obispo, Santa Barbara, Santa Clara, San Francisco,
Solano, Sonoma, Stanislaus, Sutter, Tulare, Yolo, Yuba, and Ventura. Available as of
the date of filing: https://covid19.ca.gov/roadmap-counties/#track-data.
12 Available as of the date of filing: https://lao.ca.gov/Education/EdBudget/Details/331.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 10 of 35 Page ID #:10
11
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
32.
As of July 14, 2020, there are 8,433 Child Care centers opened in the state
of California and a total of 24,915 licensed Family Child Care Homes for a total of
33,348 total facilities.13
The U.S. Department of Education Is Encouraging Schools to Open
33.
During a July 8 briefing conducted by the Vice President and the
coronavirus task force, the United States Secretary of Education, Betsy DeVos, stated
“[t]here were a number of schools and districts across the country that did an awesome
job of transitioning this spring. And there were a lot in which I and state school leaders
were disappointed in that they didn't figure out how to continue to serve their students.
Too many of them just gave up. The Center for Reinventing Public Education [CRPE]
said that only 10 percent across the board provided any kind of real curriculum and
instruction program.”14
34.
The United States Department of Education spent approximately $8.3
billion on California K-12 schools for the 2019-2020 school year.15
35.
Not providing education for America’s children is not a choice. “It would
fail America’s students, and it would fail taxpayers who pay high taxes for their
education.”16
13 Available as of the date of filing: https://cdss.ca.gov/Portals/9/Additional-
Resources/Research-and-Data/DSSDS/ChildCare-7-19.pdf.
14 Available as of the date of filing: https://www.whitehouse.gov/briefings-
statements/press-briefing-vice-president-pence-members-coronavirus-task-force-july-8-
2020/.
15 Available as of the date of filing: https://lao.ca.gov/Education/EdBudget/Details/331.
16 Id.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 11 of 35 Page ID #:11
12
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
36.
Devos also quotes The American Academy of Pediatrics, “Keeping
schools closed ‘places children and adolescents at considerable risk of morbidity and, in
some cases, mortality.’” The Pediatrics guidance concluded that everyone “should start
with a goal of having students physically present in school.” “Fully open” and “fully
operational” means that students need a full school year or more, and it’s expected it
will look different depending on where you are.”17 “Ultimately, it’s not a matter of ‘if’
schools should reopen, it’s simply a matter of ‘how.’ They must fully open, and they
must be fully operational.”18
37.
CRPE found many disparities among schools.19 In a new report involving a
nationally representative sample of 477 school systems, statistical weights were applied
to provide a nationally representative sample of U.S. school districts. CRPE was able to
compare remote education in districts in different types of communities and with
different student characteristics. The original cohort of districts followed showed
increasing clarity and expectations for instruction, tracking student engagement, and
progress monitoring. CRPE found a “sobering story… just one in three districts expect
teachers to provide instruction, track student engagement, or monitor academic progress
for all students… Far too many districts are leaving learning to chance during the
coronavirus closures.”20
38.
CRPE also notes, “[e]xperience tells us that low expectations for
instruction bode poorly for the students who faced the greatest challenges: those in low-
income households, those with disabilities, those who speak a language other than
English at home.”21
17 Id.; full report available as of the date of filing:
https://services.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinical-
guidance/covid-19-planning-considerations-return-to-in-person-education-in-schools/.
18 Id.
19 Available as of the day of filing: https://www.crpe.org/thelens/too-many-schools-
leave-learning-chance-during-pandemic.
20 Id.
21 Id.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 12 of 35 Page ID #:12
13
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
39.
“Tracking student progress by collecting work for review, assessing
students’ progress toward academic benchmarks, or grading their work is the best way
to gauge if students are continuing to learn in their remote settings. It may also be our
only way to get a sense of gaps in students’ learning that may emerge before the fall,
when districts may be able to assess where students stand. Again, we found worrisome
trends in the expectations districts set. Just 42 percent expect teachers to collect student
work, grade it, and include it in final course grades for at least some students (typically
those in middle and upper grades).”22
40.
The CRPE found a rural-urban divide. “This rural-urban divide in
expectations is stark—far more so than the gap in instruction between districts with
high concentrations of students who qualify for free or reduced-price lunch. When we
divide the sample into quartiles based on the district’s concentration of economically
disadvantaged students, we do not see a clear divide between the districts with the
highest and lowest quartiles in terms of expectations for instruction, tracking student
engagement, or progress monitoring.”23
41.
“More affluent school districts are more likely to require live video
instruction from teachers. While expectations around synchronous, or real-time,
teaching are uncommon across the board (expected in 21.8 percent of districts), only
14.5 percent of school districts with the highest concentration of students receiving free
or reduced-price lunch expect teachers to provide live instruction. The most affluent 25
percent of districts in our sample are twice as likely to expect real-time teaching.”24
42.
School closings also disproportionately affects minorities, as the NAACP
notes.25
22 Id.
23 Id.
24 Id.
25 Available as of the day of filing: https://naacp.org/coronavirus/coronavirus-impact-
on-students-and-education-systems/
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 13 of 35 Page ID #:13
14
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
43.
“For students of color at all levels across the country, school closings
create problems even more urgent than the interruption of their educations. Schools also
serve as a community nexus for food and housing. Many Black students are eligible for
the federal Free or Reduced-Price Lunch Program (FRPL). Fall 2016 data from the
National Center on Education Statistics show that for high-poverty schools where more
than 75% of students are eligible for FRPL, Blacks students accounted for 44% of those
attending. At schools where 50-75% percent of students are eligible for FRLP, Black
students made up 30% of the student population. For students who rely on their schools
as a reliable source of daily meals, school closings leave a critical gap. The Secretary of
Agriculture is granted waiver authority with respect to the student lunch law (under the
Meals Act), including regarding nutritional content. This is a double-edged sword. It is
important for the Secretary to be able to move quickly to get meals to students,
including outside the school and in individual settings. Yet even here some guardrails
must remain in place. We cannot go back to the days when ketchup counted as a
vegetable for school lunches.”26
American Academy of Pediatrics Recommends Students
Physically Present in Schools
44.
In late June, the American Academy of Pediatrics (“AAP”) “strongly”
recommended that “the coming school year should start with a goal of having students
physical present in school.”27
45.
The AAP noted the health benefits that would otherwise be lost such as
“child . . . development,” “social and emotional skills,” “reliable nutrition,”
physical/speech and mental health therapy,” and “opportunities for physical activity.”28
26 Id.
27 American Academy of Pediatrics, COVID-19 Planning Considerations: Guidance for
School Reentry, 3d para. (Last Updated June 25, 2020),
https://services.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinical-
guidance/covid-19-planning-considerations-return-to-in-person-education-in-schools/.
28 Id. at 1st para.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 14 of 35 Page ID #:14
15
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
46.
The AAP also noted that the lack of “in-person learning” could
disproportionately affect minorities and those of less socioeconomic means.29
Studies Show that Open Schools Present Minimal Risk
47.
According to California’s own published reports, not a single minor in the
state of California has died as a result of COVID-19.30
48.
The CDC reports that children between the ages of 5 -17 are hospitalized at
a rate of 5.3 per 100,000 compared to a national average of 113.6.31
49.
On March 30, 2020, the Australian Research Council released a study that
looked at the early data from China, Singapore, South Korea, Japan, and Iran. The study
concluded that while “SARS-CoV-2 can cause mild disease in children, the data
29 Id.
30 Available as of the date of filing: https://update.covid19.ca.gov.
31 Available as of the date of filing: https://www.cdc.gov/coronavirus/2019-ncov/covid-
data/covidview/index.html#hospitalizations
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 15 of 35 Page ID #:15
16
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
available to date suggests that children have not played a substantive role in the intra-
household transmission of SARS-CoV-2.32
50.
On April 26, 2020, another Australian study found no evidence of children
infecting teachers.33 The study concluded that the “spread of COVID-19 within NSW
(New South Wales) schools has been very limited.”34 This study also found that unlike
other respiratory viruses, children are not the primary drivers of the spread of COVID-
19.35
51.
On May 18, 2020, during a video conference of ministers of education
with the Council of the European Union, it was reported that since the reopening of
schools in 22 member states, there had been no increase in infections of COVID-19
among students, teachers and parents.36
52.
On May 28, 2020, a study was released showing that there was no
evidence of secondary transmission of COVID-19 from children attending school in
Ireland.37
53.
On June 23, 2020, the Institute Pasteur after studying 1,340 people linked
to primary schools in France released a study in which they found that infected children
did not spread the virus to other children or to teachers or other school staff.38
32 Available as of the date of filing:
https://www.medrxiv.org/content/10.1101/2020.03.26.20044826v1.
33 Available as of the date of filing: http://ncirs.org.au/sites/default/files/2020-
04/NCIRS%20NSW%20Schools%20COVID_Summary_FINAL%20public_26%20Apr
il%202020.pdf, p. 4.
34 Id.
35 Id.
36 Available as of the date of filing: https://www.washingtonexaminer.com/news/22-eu-
member-states-have-not-seen-a-spike-in-coronavirus-cases-in-schools-after-reopening.
37 Available as of the date of filing:
https://www.eurosurveillance.org/content/10.2807/1560-
7917.ES.2020.25.21.2000903#html_fulltext.
38 Available as of the date of filing: https://www.pasteur.fr/fr/file/35404/download.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 16 of 35 Page ID #:16
17
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
54.
On July 7, 2020, the Public Health Agency of Sweden published a study
titled “Covid-19 in schoolchildren”.39 This study found:
a. Closing of schools had no measurable effect on the number of cases of
COVID-19 among children;
b. Children are not a major risk group of the COVID-19 disease and seem to
play a less important role from the transmission point of view, although
more active surveillance and special studies such as school and household
transmission studies are warranted; and
c. The negative effects of closing schools must be weighed against the
possible positive indirect effects it might have on the mitigation of the
COVID-19 pandemic.
55.
July 8, 2020, Prevent Epidemics published a report by the former head of
the Centers for Disease Control and Prevention. In this report titled “Reopening
America’s Schools: A Public Health Approach” they found that the evidence “suggests
that children may play a smaller role in transmission of COVID-19 than adults.”40
56.
On July 15, 2020, a study of 2,000 German school children was released
that concluded that schools and young people do not play a significant role in the
transmission of the coronavirus.41 This study found that schools in Germany did not
become hotspots after they were reopened.42
39 Available as of the date of filing:
https://www.folkhalsomyndigheten.se/contentassets/c1b78bffbfde4a7899eb0d8ffdb57b
09/covid-19-school-aged-children.pdf.
40 Available as of the date of filing: https://preventepidemics.org/wp-
content/uploads/2020/07/Reopening-Americas-Schools_07-08-2020-Final.pdf, p. 6.
41 U.S. News article available as of the date of filing at:
https://www.washingtonexaminer.com/news/german-study-no-evidence-coronavirus-
spreads-in-schools. Summary of study available in German as of the date of filing:
https://tu-dresden.de/med/mf/die-fakultaet/newsuebersicht/immunisierungsgrad-
geringer-als-erwartet-schulen-haben-sich-nicht-zu-hotspots-entwickelt.
42 Id.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 17 of 35 Page ID #:17
18
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Studies Show that the Digital Divide Harms Students
57.
Another study noted “there are many reasons to believe the COVID-19
impacts might be larger for children in poverty and children of color,” citing (1) the
disproportionately higher rate of COVID-19 infections and deaths and worse effect of
the economic downturn on African American and Hispanic parents, and (2) the “digital
divide in technology and internet access by race/ethnicity and socioeconomic status.”43
58.
This digital divide is supported by surveys, such as one that showed that:
(1) 41% of respondents stated that “not having a computer or tablet or enough available
devices” was a “top barrier” to distance learning, while only 37% said that their child’s
school had lent mobile technology devices; and (2) 71% of African American families
and 69% of families with a household income of less than $50,000 stating that lending
mobile technology devices would be very helpful for families like theirs.44 This survey
comports with the “evidence that, even when teachers are making themselves and their
instructional materials available virtually, many students lack the means to access
online.”45
59.
A Brown University study estimated those negative impacts on children to
be a loss of 63-68% of the learning gains in reading relative to a typical school year and
a loss of 37-50% in learning gains in math.46
60.
In some grades, students may come back close to a “full year behind in
math.”47
43 Kuhfeld et al. (May 2020) Projecting the potential impacts of COVID-19 school
closures on academic achievement, p. 25 Annenberg Institute at Brown University,
https://doi.org/10.26300/cdrv-yw05.
44 The Education Trust-West, California Parent Poll: COVID-19 and School Closures
(Accessed on June 19, 2020), available at: https://west.edtrust.org/ca-parent-poll-covid-
19-and-school-closures/.
45 Kuhfeld, Projecting the potential impacts of COVID-19 school closures on academic
achievement, p. 10.
46 Id. p. 23.
47 Id.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 18 of 35 Page ID #:18
19
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
61.
The fact that this “digital divide” is a factor in the disproportionate effect
of school shutdowns is even more troubling when data and anecdotal evidence show
that remote learning encourages decreased teacher interaction with students.48
62.
Less than two weeks after the school shutdown on March 16, 2020, the Los
Angeles School District officials admitted that 15,000 students are completely
unaccounted for and more than 40,000 had not been in daily contact with their
teachers.49
63.
Even among students from families with lower economic means who are
provided with tablets and wifi hotspots, it has been reported that parents who are
technically challenged have been unable to help their children get online. Teachers
report children who are unable to respond online because they are babysitting their
siblings, also home from school, while parents work to keep the family housed. Even
the most diligent of teachers cannot provide extra attention to a struggling student in a
class as they might in person.
Student’s Futures are Already Affected
64.
FAFSA (Free Application for Federal Student Aid) and college
applications are down.50 This certainly does not align with goals for college and
preparing for future.
Special Education Students are Disadvantaged by Distance Learning
65.
Under federal law, students with disabilities are guaranteed a Free,
48 Id. at 10 “There are concerning signs that many teachers have had no contact at all
with a significant portion of students . . . only 39% of teachers reported interacting with
their students at least once a day, and most teacher-student communication occurred
over email”, and absenteeism.
49 Howard Blume, 15,000 L.A. high school students are AWOL online, 40,000 fail to
check in daily amid coronavirus closures, LOS ANGELES TIMES, (March 30, 2020)
Available at: https://www.latimes.com/california/story/2020-03-30/coronavirus-los-
angeles-schools-15000-high-school-students-absent.
50 Available as of the date of filing: https://www.fastweb.com/student-
news/articles/coronavirus-impacts-fafsa-applications-college-enrollment.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 19 of 35 Page ID #:19
20
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Appropriate Public Education (FAPE), as incorporated through the IDEA ACT 34
C.F.R. § 300.101and Title III of the Americans with Disabilities Act of 1990 (“ADA”),
§ 504 of the Rehabilitation Act of 1973.51
66.
The federal government allocates approximately $1.2 billion for California
for special education each year.52
67.
Students with disabilities have been especially vulnerable to distance
learning, as it is common for a student’s individualized education program (IEP) to
have individualized instruction, like a one-on-one aide, for example. When school are
closed, it is difficult, and sometimes impossible to implement a student’s IEP. Not
following an IEP can cause grave consequences such as regression.
68.
Many parents of special needs children in California have reported that
their children received none, or nearly none, of the individualized instruction
guaranteed by law. Frustrated instructors simply gave up when faced with technology
challenges, while others didn’t try at all, and many school districts made zero provision
for delivering these federally mandated services to children, despite the federal funding
provided to the state for them.
69.
While not solely unique to students with disabilities, socialization in
schools is critical for special needs children.
Distance-Only Schools Pose Child Safety Concerns
70.
As mandatory reporters, teachers who have daily contact with children are
in the best position to notice and report suspected child abuse.
71.
Nationwide, “stay at home” does not mean “safe at home” as a report from
RAINN (Rape, Abuse, & Incest National Network) describes. “Many minors are now
quarantined at home with their abuser. Meanwhile, these kids are cut off from their
safety net ― the teachers, coaches, and friends’ parents who are most likely to notice
51 20 U.S.C.A. § 1412; see 42 U.S.C.A. § 12132; see 29 USCA § 794.
52 Available as of the date of filing:
https://lao.ca.gov/Publications/Report/4110#Introduction.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 20 of 35 Page ID #:20
21
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and report suspected abuse….As a result, abuse reports to many state authorities have
declined — not because there is less abuse taking place, but because children have less
contact with adults outside the home who could potentially spot and report abuse.
Sadly, it is likely that the risk of children being sexually abused will increase as shelter-
in-place orders continue — one more tragic consequence of the public health crisis the
country currently faces.”53
72.
Child abuse reports have also declined, but hospitals are reporting higher
numbers – this is concerning because abuse is not being detected in time (i.e., before an
abuse incident requiring hospitalization). In San Diego, during the months of April and
May, 24 children were reported as being treated for abuse symptoms which is double
what they normally see in the two-month period. Other locations have seen an increase,
including Jacksonville, Florida (8 abusive head trauma cases in March and April instead
of 3) and Fort Worth, Texas (9 severe cases at a hospital since March, when they usually
only have 6 in the whole year).
One California School District’s Effort to Prepare to Open
73.
As an elected member of the Palos Verdes Peninsula Unified School District
(“PVPUSD”) which is located in Los Angeles County, plaintiff Brach was active in the
process of preparing the school district in reopening the schools.
74.
Brach was involved in preparing a “Return to School” survey.
75.
This survey found that over 60% of parents in the district believed that there
was not enough face-to-face teaching time during the initial shutdown.
76.
Over 60% of parents also preferred that their children attend school in a
normal in-person setting rather than return to the virtual learning program.
77.
Among teachers, over 60% of the teachers were comfortable with returning
to teach school.
53 Available as of the date of filing: https://www.rainn.org/news/first-time-ever-minors-
make-half-visitors-national-sexual-assault-hotline
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 21 of 35 Page ID #:21
22
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
78.
The survey also showed that due to financial constraints, if the school did
not return to in-person setting, over 7% of parents of TK – 5th grade children and over
19% of parents of parents of children between 6th - 12th grade would have to leave their
children home without supervision.
79.
PVPUSD established a reopening committee that included staff, medical
professionals and parents.
80.
PVPUSD was prepared to implement screening including providing a digital
app so parents could answer questions each morning regarding symptoms, and the school
was prepared to take students’ temperature to verify the app’s data.
81.
PVPUSD also was prepared to implement the following mitigation strategy:
a. Staggered arrival times;
b. Designated entrance and exit routes;
c. Purchase no touch thermometers and handle the logistics of temp taking to
align with the number of thermometers;
d. Procure masks including N95 masks for nurses and cloth masks for students;
e. Provide water filling stations as no ability to use drinking fountains;
f. Provide grab/go meals for lunch;
g. Plexiglas for serving and cashier stations;
h. Investigation of HVAC system to support air circulation if windows had to
be closed;
i. Order signage for directional guides and handwashing reminders;
j. Handwashing stations with foot pedal;
k. Install touch free sanitizing;
l. Instituted protocols for high touch areas.
82.
PVPUSD was ready to work with the teachers, parents, and students to
provide options. The 60% of teachers and parents who wanted in-person learning were
going to be able to choose that option while the other remainder could continue their
learning with virtual study.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 22 of 35 Page ID #:22
23
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Newsom’s Doomsday Predictions Have Not Proven True
83.
Governor Newsom’s rationale for Executive Order N-33-20, his original
shelter in place order was to “bend the curve.”54 He stated that “[i]n some parts of our
state, our case rate is doubling every four days,” and that “[t]he point of the stay at
home order is to make those numbers moot.”55 The Governor added that one goal was
to slowdown transmission enough to reduce the strain it might place on hospital
resources.56
84.
California only accounts for five point three percent (5.3%) of the nation’s
COVID-19 deaths while containing twelve percent (12%) of the nation’s populace.57
85.
Governor Newsom cited a model showing that as of March 19, 2020, 56
percent of Californians, or more than 25 million people, could be infected over the next
eight weeks.58
86.
Contrastingly, several infectious disease experts, including Professor of
Epidemiology John P.A. Ioannidis of Stanford University, called this an extreme,
worst-case scenario that was unlikely to happen – and they turned out to be correct.59
87.
Upon information and belief, another piece of flawed data that drove
California’s and Santa Clara County’s original, onerous shelter-in-place orders was an
54 March 19, 2020 press briefing at 35:17-36:00, available as of the date of filing at
https://www.youtube.com/watch?v=8OeyeK8-S5o.
55 Id.
56 Id. at 5:42-8:09.
57 According to the CDC, California has 6,823 of the United States’ 128,035 COVID-19
deaths. Available as of the date of filing at
https://www.cdc.gov/nchs/nvss/vsrr/covid19/index.htm. According to the U.S. Census,
California has 39,512,223 of the United States’ 328,239,523 people. Available as of
date of filing at https://www.census.gov/quickfacts/fact/table/CA,US/PST045219.
58 Id. at 5:00-6:00.
59 Newsom: 56 % of Californians Could Get Coronavirus If Nothing Is Done, San
Francisco Chronicle, March 19, 2020, available as of May 3, 2020 at:
https://webcache.googleusercontent.com/search?q=cache:sokxG9_b-
2oJ:https://www.sfchronicle.com/health/article/Newsom-56-of-Californians-could-get-
coronavirus-15144438.php+&cd=1&hl=en&ct=clnk&gl=us.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 23 of 35 Page ID #:23
24
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
incorrect assumption that the R0 of COVID-19 was 5.7.
88.
The “R-naught” is the rate at which people can be infected, or more
precisely the rate of reproduction of the virus as measured by infected human hosts.60
89.
Upon information and belief, part of the data that the Governor depended
on for his claim—of 25 million infections in California within eight weeks—during his
March 19, 2020 announcement was the initial rate of infection in Wuhan, the
originating epicenter of COVID-19. Then and there, the numbers apparently showed a
R0 of 5.7.61
90.
However, now, the R0 of COVID-19 without mitigation efforts is
understood to be approximately 2.2-2.7.62 With mitigation efforts, the R0 of COVID-19
has been drive further down.
91.
More egregiously, the COVID-19 death rate projections model on which
Governor Newsom relied for implementing a state of emergency and mass quarantine
of healthy Californians, turned out to be grossly flawed.63
92.
Governor Newsom’s inexplicable restrictions on school reopening is not
based in scientific facts, and is completely arbitrary especially in light of the fact that
California allows all of the functional components of schools allowed in camps and
childcare. More fundamentally, the school closing “plan” is no plan at all, and ignores
the state’s legal duties to California’s children.
///
///
60 https://www.nytimes.com/2020/04/23/world/europe/coronavirus-R0-explainer.html.
61 Available as of the date of filing: https://wwwnc.cdc.gov/eid/article/26/7/20-
0282_article.
62 Id.
63 Available as of the date of filing: https://www.statnews.com/2020/04/17/influential-
covid-19-model-uses-flawed-methods-shouldnt-guide-policies-critics-say/.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 24 of 35 Page ID #:24
25
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CLAIMS
FIRST CLAIM FOR RELIEF
42 U.S.C. § 1983 – Violation of the Equal Protection Clause
Arbitrary School Closures
(By All Plaintiffs Against All Defendants)
93.
Plaintiffs incorporate herein by reference each and every allegation
contained in the preceding paragraphs of this Complaint as though fully set forth herein.
94.
The equal protection doctrine prohibits “governmental classifications that
affect some groups of citizens differently than others.” Engquist v. Or. Dep’t. of Agric.,
553 U.S. 591, 601 (2008) (citations omitted). The touchstone of this analysis is whether
a state creates disparity “between classes of individuals whose situations are arguably
indistinguishable.” Ross v. Moffitt, 417 U.S. 600, 609 (1974).
95.
The framework for reopening schools facially, and as-applied, arbitrarily
treats Plaintiffs’ children (and other minors attending public and private schools)
differently from those in nearby school districts; those in childcare; and those attending
summer camps, even though all such children and their families are all similarly
situated.
96.
The risk of exposure or transmission within in any particular county is
substantially the same whether children are at school, daycare, or at camp, yet only
schools are subject to arbitrarily mandated closures. Children at summer camp, daycare,
and in school will be in the presence of other children, in an enclosed space, overseen
by an older person(s) not comprised of the child’s family unit, for an extended period,
and industry guidance issued for schools, camps, and daycare, contains the same or
essentially the same protocols for wearing face coverings, physically distancing,
hygiene, cleaning, arrival/departure procedures, sharing, checking for signs and
symptoms and notification procedures if a child or staff member becomes ill.
97.
Defendants’ mandates arbitrarily restrict access to schools based on the
location of the school. Children residing in any particular county, including those
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 25 of 35 Page ID #:25
26
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
counties in which Defendants have forcibly shut down in-person instruction, may still
attend private school in nearby counties, despite the differing levels of risk or exposure
to the virus, further revealing the arbitrary nature of Defendants’ treatment of Plaintiffs
and all others who rely on the public school system.
98.
There is no rational basis—much less any compelling reason—for
allowing Defendants’ arbitrary treatment of schools, which are vital to children’s
development, and are subject to more severe restrictions and potentially outright
closure. Moreover, apt and less restrictive alternatives to Defendants’ closure regime
exist, such as requiring schools to enable distanced learning over the internet, without
imposing Defendants’ overbearing, one-size-fits-all regime.
99.
Defendants intentionally, discriminatorily, and arbitrarily imposed
restrictions on the reopening of schools in violation of Plaintiffs’ right to equal
protection under the law.
100.
Plaintiffs have no adequate remedy at law and will suffer serious and
irreparable harm to their and/or their children’s constitutional rights unless Defendants
are enjoined from implementing and enforcing the State Order and associated guidance
documents which restrict the reopening of schools in a manner that violates the Equal
Protection Clause.
101.
Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to
declaratory relief and temporary, preliminary, and permanent injunctive relief
invalidating and restraining enforcement of the State Order and any associated guidance
documents.
102.
Plaintiffs found it necessary to engage the services of private counsel to
vindicate their rights under the law. Plaintiffs are therefore entitled to an award of
attorneys’ fees pursuant to 42 U.S.C. § 1988.
///
///
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 26 of 35 Page ID #:26
27
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SECOND CLAIM FOR RELIEF
42 U.S.C. § 1983 – Violation of Due Process
Deprivation of Liberty Without Procedural Due Process of Law
(By All Plaintiffs against All Defendants)
103.
Plaintiffs incorporate herein by reference each and every allegation
contained in the preceding paragraphs of this Complaint as though fully set forth herein
104.
The Due Process Clause of the Fourteenth Amendment provides that no
state shall “deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. amend XIV. Plaintiffs and their children have a liberty interest in their right
to equal access to basic minimum education and in their rights secured by the California
Constitution and state law, which includes the right to an education, Cal. Const. art. IX,
§ 1 (“[a] general diffusion of knowledge and intelligence [is] . . . essential to the
preservation of the rights and liberties of the people….”); O’Connell v. Superior Court,
141 Cal. App. 4th 1452, 1482 (2006) (students possess a constitutional right to “equal
access to a public education system that will teach them the skills they need to succeed
as productive members of modern society.”); Butt v. State of California, 4 Cal. 4th 668,
681 (1992) (“education is a “uniquely fundamental personal interest in California”);
Serrano v. Priest, 5 Cal. 3d 584, 589 (1971) (“the right to an education in our public
schools is a fundamental interest …”) and (2) their right to contract freely, without
impairment by the State, with private schools for the education of their children. U.S.
Const., art. I, § 10; Cal. Const. art. I, § 9.
105.
Defendants deprive Plaintiffs and/or their children of these rights and
liberties without due process of law, in violation of the Fourteenth Amendment to the
U.S. Constitution, by (1) mandating distanced-learning in most circumstances, which
effectively provides no or unequal access to education; and by (2) substantially
impairing Plaintiffs’ ability to contractually obligate schools to complete the in-person
instruction of their children that the state refuses to provide.
106.
The State Order and Defendants’ enforcement thereof violate Plaintiffs’
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 27 of 35 Page ID #:27
28
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
procedural due process rights because (1) Defendants lack any legal authority to issue
or enforce the State Order and associate guidance, and therefore deprive Plaintiffs of
liberties without any process whatsoever, and (2) Defendants fail to specify standards or
protocols applicable to requests for a waiver from compliance with Defendants’ orders.
107.
Defendants have no authority under either the California Constitution nor
any law adopted by the legislature to deprive Plaintiffs or their children of their right to
receive an education or to be free of the State’s substantial impairment of contracts—
indeed, rights are themselves protected by the California Constitution, U.S.
Constitution, and fundamental law;
108.
California law makes clear that “No state agency shall issue . . . any
guideline . . . unless the guideline . . . has been adopted as a regulation filed with the
Secretary of State . . . .” Cal. Gov. Code § 11340.5(a).
109.
Nowhere in the California Emergency Services Act, does it give the
Governor the authority to suspend the constitutional rights of Californians or to suspend
California statutes. Instead, Cal. Gov. Code §§ 8567, 8571, and 8627 only permit the
governor to suspend “regulations” and that these orders must be in writing. However,
the Governor has misused his Emergency Powers to mandate that any violation of the
State public health directives results in a fine not to exceed $1,000 or by imprisonment
not to exceed six months. Cal. Gov. Code §8665.
110.
In California, a regulation that has not been adopted in compliance with the
Administrative Procedure Act is deemed an Underground Regulation and is invalid. See
Modesto City Schools v. Education Audits Appeal Panel, 123 Cal.App.4th 1365, 1381
(2004). California is one of the few states that requires rulemaking procedure for the
adoption of guidance documents. California Practice Guide: Administrative Law 25:45,
by Rutter Group.
111.
Defendant Sonia Y. Angell is not an elected official. However, Defendant
Newsom has effectively given Defendant Angell the ability to govern the state of
California by guidance shutting down businesses and schools, in the latter case with one
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 28 of 35 Page ID #:28
29
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
stroke of the pen dooming millions of California children to no meaningful education,
inadequate education, no provision of special needs instruction, and a myriad of health
and safety risks.
112.
Governor Newsom has been impermissibly delegating executive authority
to the Public Health Agency, who in turn has been issuing directives, under the guise of
law, with criminal penalties associated for not following order.
113.
The non-descript waiver process referenced in materials issued by the
California Department of Public Health is vague and subject to arbitrary enforcement
and implementation: “A waiver may only be granted if one is a requested by the
superintendent (or equivalent for charter or private schools), in consultation with labor,
parent and community organizations. Local health officers must review local
community epidemiological data, consider other public health interventions, and
consult with CDPH when considering a waiver request.” 64 Defendants provide no
standards by which local health officers are to assess, approve, or reject such waiver
requests. What does “in consultation with” mean? Californians are left to guess.
114.
As such, Plaintiffs and the public lack any meaningful opportunity to seek
redress of injuries caused by Defendants’ mandates or by which they may seek to
reopen schools based on evidence of changing circumstances, recent research, or the
availability of healthcare or health practices to mitigate risks associated with the virus.
115.
Plaintiffs have no adequate remedy at law and will suffer serious and
irreparable harm to their constitutional rights unless Defendants are enjoined from
implementing and enforcing the State Order and associated guidance.
116.
Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to
declaratory relief and temporary, preliminary, and permanent injunctive relief
invalidating and restraining enforcement of the State Order and associated guidance.
64 Available as of date of filing:
https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/CO
VID-19/Schools%20Reopening%20Recommendations.pdf.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 29 of 35 Page ID #:29
30
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
117.
Plaintiffs found it necessary to engage the services of private counsel to
vindicate their rights under the law. Plaintiffs are therefore entitled to an award of
attorneys’ fees pursuant to 42 U.S.C. § 1988.
THIRD CLAIM FOR RELIEF
42 U.S.C. § 1983 – Violation of Due Process
Deprivation of Substantive Due Process of Law
(By All Plaintiffs against All Defendants)
118.
Plaintiffs incorporate herein by reference each and every allegation
contained in the preceding paragraphs of this Complaint as though fully set forth herein
119.
The Due Process Clause of the Fourteenth Amendment provides that no
state shall “deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. amend XIV. Plaintiffs and their children have a liberty interest in their right
to equal access to basic minimum education and in their rights secured by the California
Constitution and state law, which includes the right to an education, Cal. Const. art. IX,
§ 1 (“[a] general diffusion of knowledge and intelligence [is] . . . essential to the
preservation of the rights and liberties of the people….”); O’Connell v. Superior Court,
141 Cal. App. 4th 1452, 1482 (2006) (students possess a constitutional right to “equal
access to a public education system that will teach them the skills they need to succeed
as productive members of modern society.”); Butt v. State of California, 4 Cal. 4th 668,
681 (1992) (“education is a “uniquely fundamental personal interest in California”);
Serrano v. Priest, 5 Cal. 3d 584, 589 (1971) (“the right to an education in our public
schools is a fundamental interest …”) and (2) their right to contract freely, without
impairment by the State, with private schools for the education of their children. U.S.
Const., art. I, § 10; Cal. Const. art. I, § 9.
120.
Defendants deprive Plaintiffs and their children of these rights and liberties
without due process of law, in violation of the Fourteenth Amendment to the U.S.
Constitution, by (1) mandating distanced-learning in most circumstances, which
effectively provides no or unequal access to education; and by (2) substantially
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 30 of 35 Page ID #:30
31
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
impairing Plaintiffs’ ability to contractually obligate private schools to complete the in-
person instruction of their children that the state refuses to provide.
121.
The State Order and Defendants’ enforcement thereof violate Plaintiff’s
substantive due process rights as follows:
a.
fundamental law and the California Constitution entitles Plaintiffs
and their children equal access to a basic minimum education.
b.
the U.S. Constitution entitles Plaintiffs to be free of substantial
impairment from the state of their ability to obligate educational institutions to instruct
their children by operation of contract law;
c.
Defendants lack any legitimate, rational, or compelling interest for
depriving Plaintiffs’ children of their right to an education.
d.
even if such a legitimate interest existed, the State Order and
associated guidance is neither rationally related nor narrowly tailored to further any
such interest.
122.
Plaintiffs have no adequate remedy at law and will suffer serious and
irreparable harm to their constitutional rights unless Defendants are enjoined from
implementing and enforcing the State Order and associated guidance.
123.
Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to
declaratory relief and temporary, preliminary, and permanent injunctive relief
invalidating and restraining enforcement of the State Order and associated guidance.
124.
Plaintiffs found it necessary to engage the services of private counsel to
vindicate their rights under the law. Plaintiffs are therefore entitled to an award of
attorneys’ fees pursuant to 42 U.S.C. § 1988.
///
///
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 31 of 35 Page ID #:31
32
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOURTH CLAIM FOR RELIEF
42 U.S.C. § 1983 – Violation of Title VI of Civil Rights Act of 1964
Disparate Impact on Racial Minorities
(By Christine Ruiz and Z. R. Against All Defendants)
125.
Plaintiffs incorporate herein by reference each and every allegation
contained in the preceding paragraphs of this Complaint as though fully set forth herein.
126.
Federal law conveys to Plaintiffs the right to be free from enforcement of
facially discriminatory laws, facially neutral laws adopted with discriminatory intent or
purpose, and facially neutral laws causing a disparate impact on racial minorities with
regard to federally funded public programs, including California’s public schools. 42
U.S.C. 2000d, et seq. (Title VI of the Civil Rights Act of 1964). Section 1983, in turn,
creates a private right of action against the deprivation of such federal rights against
officials acting under color of state law, despite there being no private right of action
under a disparate impact theory pursuant to Title VI itself. See 42 U.S.C. § 1983;
Alexander v. Sandoval, 532 U.S. 275, 300 (2001) (Stevens, J., dissenting) (“[l]itigants
who in the future wish to enforce the Title VI [disparate impact] regulations against
state actors in all likelihood must only reference § 1983 to obtain relief.”)
127.
Mandatory distance learning facially, and as-applied here, creates a
negative, disparate impact on racial minorities, including Plaintiff Christine Ruiz and
her son, Z. R., who are Hispanic. Public policy research has confirmed that racial
minorities rely more heavily on educational opportunities for gaining equal
socioeconomic footing when compared to their non-minority counterparts, occasionally
resulting in an increased need for educational services.65 Racial minorities are therefore
disproportionally required to devote greater resources to provide themselves and their
65 See, e.g., https://calmatters.org/explainers/achievement-gap-california-explainer-
schools-education-disparities-explained/;
https://www.npr.org/2019/02/26/696794821/why-white-school-districts-have-so-much-
more-money.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 32 of 35 Page ID #:32
33
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
children with the same educational opportunities available to their counterparts – this
phenomenon is known as the “education gap.”
128.
Defendants have acted arbitrarily and with deliberate indifference toward
the unduly harsh effects their school restrictions have on Plaintiffs Ruiz and Z. R. and
all others racial minorities who must devote additional or unique resources to
implement meaningful at-home instruction when compared with non-minorities.
129.
Plaintiffs have no adequate remedy at law and will suffer serious and
irreparable harm to their constitutional rights unless Defendants are enjoined from
implementing and enforcing their broad prohibitions on in-person education in
California.
130.
Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to
declaratory relief and temporary, preliminary, and permanent injunctive relief
invalidating and restraining enforcement of the State Order.
131.
Plaintiffs found it necessary to engage the services of private counsel to
vindicate their rights under the law. Plaintiffs are therefore entitled to an award of
attorneys’ fees pursuant to 42 U.S.C. § 1988.
FIFTH CLAIM FOR RELIEF
42 U.S.C. § 1983 – Violation of Federal Disability Rights
Failure to Provide Equal Educational Access to Disabled Students
(By Plaintiffs Christine Ruiz and Z. R. against All Defendants)
132.
Plaintiffs incorporate herein by reference each and every allegation
contained in the preceding paragraphs of this Complaint as though fully set forth herein.
133.
Federal law provides Plaintiffs Ruiz and Z. R., along with all other
disabled families and children in California the right to free appropriate public
education, individualized education plans conferring meaningful educational benefit,
appropriate evaluation, and the right to be free from discrimination on the basis of any
disability, including through the exclusion from or deprivation of equal access to the
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 33 of 35 Page ID #:33
34
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
educational opportunities. See 20 U.S.C. § 1400, et seq. (Individuals with Disabilities
Education Act (“IDEA”)); 42 U.S.C.A. § 12131, et seq., (Title II of the Americans with
Disabilities Act of 1990 (“ADA”)); 29 U.S.C. § 794, et seq., (Section 504 of the
Rehabilitation Act of 1973).
134.
Defendants’ arbitrarily imposed restrictions on the reopening of schools,
including the forced closure of many public and private schools, deprives Plaintiffs
Ruiz and Z. R. of these rights, which are secured by the above-cited federal laws.
135.
Defendants act knowingly, recklessly, and with deliberate indifference to
the rights of Plaintiffs Ruiz and Z. R., and their children, and all other disabled children,
by forcibly restricting most private and public schools in California from providing
meaningful educational opportunities commensurate with their obligations under
federal law.
136.
Plaintiffs Ruiz and Z. R. have no adequate remedy at law and will suffer
serious and irreparable harm in the form of the deprivation of educational access and
other educational and non-discrimination rights secured by federal law, unless
Defendants are enjoined from implementing and enforcing the school closure.
137.
Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to
declaratory relief and temporary, preliminary, and permanent injunctive relief
invalidating and restraining enforcement of the State Order and any associated
guidance.
138.
Plaintiffs Ruiz and Z. R. found it necessary to engage the services of
private counsel to vindicate their rights under the law. They are therefore entitled to an
award of attorneys’ fees pursuant to 42 U.S.C. § 1988.
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment
against Defendants as follows:
• An order and judgment declaring that the State Order and the associated
guidance, facially and as-applied to Plaintiffs, violates the Equal Protection
and Due Process Clauses of the Fourteenth Amendment to the U.S.
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 34 of 35 Page ID #:34
35
Complaint
Case No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Constitution; Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d, et
seq.); the Individuals with Disabilities Education Act (20 U.S.C. § 1400, et
seq.); Title II of the Americans with Disabilities Act of 1990 (42 U.S.C. §
12131, et seq.); and Section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
§ 794, et seq.), and that Plaintiffs’ children should be allowed in-person
instruction without delay;
• An order temporarily, preliminarily, and permanently enjoining and
prohibiting Defendants from enforcing the State Order or otherwise
interfering with Plaintiffs’ constitutional rights and federal guarantees;
• For attorneys’ fees and costs;
• Such other and further relief as the Court deems appropriate and just.
Date: July 21, 2020
DHILLON LAW GROUP INC.
By: /s/ Harmeet K. Dhillon
Harmeet K. Dhillon
Mark P. Meuser
Gregory R. Michael
Attorneys for Plaintiffs
Case 2:20-cv-06469-CBM-PD Document 1 Filed 07/21/20 Page 35 of 35 Page ID #:35File and source
- File
- gov.uscourts.cacd.788906.1.0.pdf
- Size
- 757,305 bytes
- SHA-256
- 80af3b7849e94c4559e13f23ed6bc426f72b25f165a1d2636fcb0ef005828852
- Our copy
- gov.uscourts.cacd.788906.1.0.pdf
- Original
- archive.org