Orange County Board Of Education To Sue State Over Mask Rules

ORANGE COUNTY, CA — The Orange County Board of Education plans to sue Gov. Gavin Newsom over the state's mandate that K-12 students wear masks indoors for the upcoming school year.

The board voted Tuesday night to pursue a legal challenge to Newsom's ongoing assertion of emergency rule-making powers due to the coronavirus pandemic, specifically the school mask mandate, which was issued last month.

"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," according to a statement on the board's website.

"Putting aside for the moment the lack of a sound medical or scientific basis for the governor's requirement to mask school children — who in general are neither at risk from COVID-19 nor likely to spread it — and also putting aside the lack of any thoughtful, well-considered and transparent balancing of the substantial harms of forced masking of juveniles against the purported benefits, the governor and his state-level executive agencies do not have the power to continue the state of emergency indefinitely and to continue to suspend the Administrative Procedure Act to circumvent normal agency rulemaking requirements," according to the statement. "Indeed, the California Emergency Services Act (Cal. Gov't Code Sec. 8629) requires the governor to 'proclaim the termination of a state of emergency at the earliest possible date that conditions warrant.'

"On June 11, 2021, the governor announced that actions of Californians over the prior 15 months 'had successfully curbed the spread of COVID-19,' and he rescinded his 'stay-at-home' order. But while conditions clearly warrant the end of the state of emergency, and the governor effectively has announced as much, the governor has refused to give up his emergency powers. And he has now misused that power in a way that threatens serious harm to Orange County's children."

The board retained a pro bono legal firm to handle the case, so the challenge "will not incur legal fees to Orange County's taxpayers."

Tuesday night's vote, held during a special session, was 4-0, with board member Beckie Gomez leaving the meeting before The board held the vote, the OC Register reported. The board was scheduled to hold its regular meeting Wednesday afternoon.

Newsom's office did not immediately return a request for comment. He has been adamant about ensuring the safety of students and staff returning to in-person instruction—including through mask-wearing.

Dr. Dan Cooper of UC Irvine's Institute for Immunology, who has been active in the university's COVID-19 pandemic research, disputed the board's statement that children are not at risk from the coronavirus.

"That's a falsehood, that's incorrect," the pediatrician told City News Service. "We've learned that children are at risk of COVID. Yes, it's a milder disease, but to say they're not at risk is a crime. It's a lie."

Cooper noted that "even with the Alpha variant there were plenty of kids who got quite sick and we don't even know the long-term consequences. Yes, thank God, the death rate is low, but dying is not the only comorbidity. There are kids who get influenza who end up in ICU who have lung disease for the rest of their lives."

Cooper also disputed that children are not vectors of the disease.

"Kids do spread it," he said. "Most of the data is from the Alpha variant, which isn't around anymore, so we don't even know how bad this spreading is going to be now with Delta."

Cooper noted that in Israel, where 80 percent of the adult population is vaccinated, school officials are requiring masking in classrooms.

Cooper has been a consistent vocal advocate of keeping children in schools for personal learning. He led a research project that investigated how the Roman Catholic schools opened up classrooms and mitigated the spread of the virus. He also rejects any argument that face coverings are harmful to children.

"Show me one paper that identifies substantial harms of masking," Cooper said. "I dare them to show me one single paper that says children were damaged because we asked them to wear a mask."

Cooper is worried that the board's move will further inflame tempers among parents who disagree on vaccination and masking, which will lead to more tension on campus among children.
"In my opinion, as a physician, it's not helpful," Cooper said. "It's malicious."

A pair of parent groups filed a similar lawsuit last week in San Diego County, challenging school children's mask mandate.

City News Service, Patch Editor Ashley Ludwig contributed to this report.