Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 1 of 35 Page ID #:1 1 2 3 4 5 6 7 8 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 9 10 Attorneys for Plaintiffs 11 12 UNITED STATES DISTRICT COURT FOR 13 THE CENTRAL DISTRICT OF CALIFORNIA 14 WESTERN DIVISION 15 16 17 18 19 20 21 22 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; Case No.: COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 23 Plaintiffs, v. 24 25 26 27 28 GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of 1 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 2 of 35 Page ID #:2 5 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 6 Defendants. 1 2 3 4 7 8 Today, education is perhaps the most important function of state and local 9 governments. Compulsory school attendance laws and the great 10 expenditures for education both demonstrate our recognition of the 11 importance of education to our democratic society. It is required in the 12 performance of our most basic public responsibilities, even service in the 13 armed forces. It is the very foundation of good citizenship. Today it is the 14 principal instrument in awakening the child to cultural values, in preparing 15 him for later professional training, and in helping him to adjust normally to 16 his environment. In these days, it is doubtful that any child may reasonably 17 be expected to succeed in life if he is denied the opportunity of education. 18 Such an opportunity, where the state has undertaken to provide it, is a right 19 which must be made available to all on equal terms. – Chief Justice Earl 20 Warren, Brown v. Board of Education, 347 U.S. 483, 491 (1954). 21 22 Plaintiffs Matthew Brach, Jesse Petrilla, Lacee Beaulieu, Erica Sephton, Kenneth 23 Fleming, John Ziegler, Alison Walsh, Roger Hackett, Christine Ruiz, and her minor 24 child, referred to by his initials, Z.R., by their attorneys, Dhillon Law Group, Inc., for 25 their claims against Defendants Gavin Newsom, in his official capacity as the Governor 26 of California; Xavier Becerra, in his official capacity as the Attorney General of 27 California; Sonia Y. Angell, in her official capacity as the State Public Health Officer 28 and Department of Public Health Director; Tony Thurmond, in his official capacity as 2 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 3 of 35 Page ID #:3 1 State Superintendent of Public Instruction and Director of Education, allege and show 2 the Court as follows (this “Complaint”). NATURE OF ACTION 3 4 1. Defendants have ushered in a new wave of COVID-19 restrictions, this 5 time barring in-person schooling for most children in California. In Defendants’ rush to 6 enact these new restrictions, they have placed politics ahead of the wellbeing of 7 children, and children’s important—indeed, fundamental—interest in receiving equal 8 access to meaningful education. Defendants’ arbitrary restrictions on in-person 9 schooling effectively deprive Plaintiffs’ children, and millions of other children across 10 California, of the opportunity for meaningful education and the attendant hope for a 11 brighter future. 12 2. This Action presents facial and as-applied challenges to the Governor of 13 California’s May 4, 2020 Executive Order N-60-20 (“State Order”), attached here as 14 Exhibit 1, which requires Californians to obey all State Public Health directives and 15 orders, including the State’s July 17, 2020 “COVID-19 Industry Guidance: School and 16 School-Based Programs,” attached here as Exhibit 2. 17 3. This Action is brought pursuant to 42 U.S.C. § 1983, on the grounds that 18 the State Order and associated guidance and directives, and Defendants’ enforcement 19 thereof, violate Plaintiffs’ constitutionally and federally protected rights, including 20 specifically: (1) the right to equal protection, free from arbitrary treatment by the State 21 (U.S. Const. amend. XIV); (2) the right to procedural and substantive due process (U.S. 22 Const. amend. XIV); (3) the right to be free from federally-funded state action resulting 23 in a disparate impact on racial minorities (Title VI of the Civil Rights Act of 1964, 42 24 U.S.C. 2000d, et seq.); and (4) the right to equal and meaningful access to education, 25 free from arbitrary state action resulting in a disparate impact on those with disabilities 26 (Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq.; Title II of the 27 Americans with Disabilities Act of 1990, 42 U.S.C. § 12131, et seq.; and Section 504 of 28 the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq.)). 3 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 4 of 35 Page ID #:4 1 4. With the school year commencing in mere weeks from the date of this 2 filing, time is of the essence, and the Court should not hesitate to ensure that Plaintiffs’ 3 fundamental interests in securing a meaningful education for their children are 4 preserved and protected from Defendants’ arbitrary actions. JURISDICTION AND VENUE 5 6 5. This action arises under 42 U.S.C. § 1983 in relation to Defendants’ 7 deprivation of Plaintiffs’ rights as secured by the U.S. Constitution and federal law. 8 Accordingly, this Court has federal question jurisdiction under 28 U.S.C. §§ 1331 and 9 1343. This Court has authority to award the requested declaratory relief under 28 10 U.S.C. § 2201; the requested injunctive relief and damages under 28 U.S.C. § 1343(a); 11 and attorneys’ fees and costs under 42 U.S.C. § 1988. 12 6. The Central District of California is the appropriate venue for this action 13 pursuant to 28 U.S.C. §§ 1391(b)(1) and (2) because it is the District in which 14 Defendants maintain offices, exercise their authority in their official capacities, and will 15 enforce the State Order; and it is the District in which substantially all of the events 16 giving rise to the claims occurred. PARTIES 17 18 7. Plaintiff Matthew Brach is a resident of Rancho Palos Verdes, California. 19 He is suing in his individual capacity and not as an elected member of the Board of 20 Education for the Palos Verdes Peninsula Unified School District. He is the father of 21 two children. His sixteen-year-old son and thirteen-year-old daughter are students in the 22 Palos Verdes Peninsula Unified School District. His son is entering his senior year and 23 will suffer academically as a result of the denial of personal interaction with teachers 24 and positive academic role models. His son’s learning style requires him to be able to 25 ask questions of and interact with his teachers and to learn collaboratively with peers. 26 His daughter is already suffering emotionally from being isolated from her learning 27 community. 28 4 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 5 of 35 Page ID #:5 1 8. Plaintiff Jess Petrilla is a resident of Mission Viejo, California. He has a 2 son who is about to enter first grade. Last school year, when his son was in kindergarten 3 and transitioned from in-classroom to distance learning, Petrilla noticed a significant 4 decline in his discipline and engagement. His son’s enthusiasm for learning declined, 5 and his son became restless. Petrilla’s wife has been forced to take time off of work in 6 order to oversee her son’s education. The Petrillas are concerned about the negative 7 effects that this prolonged absence from the social aspects of structured education will 8 have on the future development of their son. 9 9. Plaintiff Lacee Beaulieu is a resident of La Jolla, California. She has two 10 children, a daughter who is entering the ninth grade at a private school and a son who is 11 about to enter 5th grade in the San Diego Unified School District. One of her biggest 12 challenges with distance learning was trying to balance screen time. Her son’s doctor 13 has recommended that he not spend more than two hours a day in front of computer 14 screens. With distance learning, this instruction has been almost impossible to honor. 15 She is concerned that if her son is going to keep up academically, this could come at a 16 cost of brain development issues as a result of him spending too much time in front of 17 computer screens. She found it unrealistic to expect her son to follow the daily/weekly 18 schedule on his own. If she was tied up with work, her son was unable to proceed with 19 his daily lesson plans. While her daughter had more interaction with her teachers, 20 because of the lack of labs, she was unable to properly do science experiments. 21 Beaulieu believes that the increased screen time has had a negative affected on both of 22 her children. She has noticed that they have difficulty with sleep schedules, both are 23 depressed, and their discipline in completing school assignments has decreased. The 24 enforced deprivation of personal contact with their peers has also affected these 25 children negatively. 26 10. Plaintiff Erica Sephton is a resident of Murrieta, California. She has a 27 daughter who is about to enter transitional kindergarten at Saint Jeanne de Lestonnac 28 Catholic school in Temecula. Sephton understands that her daughter needs social 5 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 6 of 35 Page ID #:6 1 interaction with her fellow classmates, something that she cannot get at home doing 2 distance learning. Sephton is aware of the risks of COVID-19 and believes that these 3 minor risks for children do not outweigh the harm that her daughter is suffering by 4 being deprived of her in-person education. While the school, the teachers and the 5 students are ready to resume school instruction in the classroom with proper 6 precautions, Sephton believes that they are being held back because of positive test 7 results in other parts of the county and not because of any substantial risk in her 8 community. She does not understand why her daughter is allowed to spend all day in a 9 childcare facility, but cannot spend the same period of time in a private school, 10 11 learning. 11. Plaintiff Kenneth Fleming is the father of a public high school senior in 12 Long Beach, California. His daughter has maintained straight A’s on her report card for 13 the last three years. She is a student athlete with ambition to earn a sports scholarship to 14 attend her dream school. Plaintiff Fleming is concerned that online-only education, 15 which has not been awarding letter grades to students, adversely impacts his daughter’s 16 opportunity to compete for a college scholarship. He also believes that online-only 17 education does not assist his daughter either athletically or academically in preparing 18 for college. 19 12. Plaintiff John Ziegler is a resident of Camarillo, California and is the father 20 of an eight-year-old girl enrolled in public school. When her school moved from in- 21 person instruction to an online platform during the Spring 2020 semester, her 22 educational development suffered. She fell behind in her academic progress. As a result 23 of the denial of in-person educational instruction, Plaintiff Ziegler’s wife is left with no 24 choice but to forgo her employment to stay home with their daughter. 25 13. Plaintiff Alison Walsh is the mother of two children who were in the 26 Capistrano Unified School District during the 2019-2020 school year. When CUSD 27 moved to an online platform in the 2020 spring semester, her children’s education 28 suffered. Her children’s school did not offer her children any live instruction. Their 6 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 7 of 35 Page ID #:7 1 teachers merely sent work packets to the students to complete independently. In 2 preparation for the 2020-2021 academic year, Plaintiff Walsh enrolled her children in 3 private school to ensure that her children could receive academic instruction. Now with 4 Defendants’ guidance, even the private school is required to provide distance learning. 5 14. Plaintiff Roger Hackett lives in Ventura County and has a son who will 6 attend a private middle school in Westlake Village, California. His son’s school has 7 made significant preparations for safe in-person instruction pursuant to the CDC and 8 local guidelines. This school is willing to offer both in-person and distance learning 9 options based on the preference of the parents, and is ready to safely reopen in-school 10 classes and non-contact athletics starting August 12. Plaintiff Hackett’s concern is that 11 online-only education will adversely impact his son’s academic and social 12 development. His son is frustrated by continual isolation from his academic community 13 and absence from school athletics. Even though Westlake Village has very few 14 COVID-19 positive cases, because it is in Los Angeles County which is on the state’s 15 watch list, this private school is being prevented from operating in compliance with 16 COVID safety guidelines and in accordance with the desires of the school, teachers, 17 parents, and students. 18 15. Plaintiff Christine Ruiz is Hispanic and lives in Los Angeles County. She 19 has two sons who attend public school in the county, one of whom is Plaintiff Z. R., 20 referred to herein by his initials. Both boys have been diagnosed with autism. Her 15- 21 year-old son, Z. R., attends high school, in moderate to severe special education classes. 22 Under normal circumstances, he has an entire team of special needs educated, 23 credentialed staff working hands on with him during the entire school day pursuant to 24 an Individual Education Program (“IEP”) mandated by law. As of March 16, 2020, he 25 has received no services as mandated by his IEP. While the school offered a Zoom 26 meeting, this did not work. Her younger son is in junior high school. He has been 27 placed in mild to moderate special education classes. The online class only lasted about 28 30 minutes a day, and he did not learn anything by clicking a few links and watching a 7 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 8 of 35 Page ID #:8 1 video. Her son is a hands-on learner. As a result of the school transitioning to online- 2 only education and not providing the request IEP services, Ruiz has had to hire an 3 educational tutor to assist her sons. 16. 4 Plaintiff Z. R. is a minor and, as such, is referred to herein by his initials. 5 Z. R. is the 15-year-old son of Christine Ruiz who currently attends high school. Z. R. 6 is Hispanic and takes moderate to severe special education classes as a result of his 7 autism. 8 17. Defendant Gavin Newsom (“Newsom”) is made a party to this Action in 9 his official capacity as the Governor of California. The California Constitution vests the 10 “supreme executive power of the State” in the Governor, who “shall see that the law is 11 faithfully executed.” Cal. Const. Art. V, § 1. Governor Newsom signed Executive Order 12 N-60-20 (the “Executive Order”) on May 4, 2020. See, e.g., Ex Parte Young, 209 U.S. 13 123 (1908). 14 18. Defendant Xavier Becerra (“Becerra”) is made a party to this Action in his 15 official capacity as the Attorney General of California. Under California law, Becerra is 16 the chief law enforcement officer in the State. Cal. Const. Art. V, § 13. 19. 17 Defendant Sonia Y. Angell, MD, MPH (“Dr. Angell”) is made a party to 18 this Action in her official capacity as the Director and State Public Health Officer. Dr. 19 Angell is sued herein in her official capacity to the extent that she is responsible for 20 providing official government guidance to the various industries that are allowed to 21 operate. 22 20. Defendant Tony Thurmond, (“Thurmond”) is made a party to this Action 23 in his official capacity as State Superintendent of Public Instruction and Director of 24 Education. Thurmond is responsible for enforcing education law and regulations in 25 California. 26 27 /// 28 /// 8 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 9 of 35 Page ID #:9 FACTUAL ALLEGATIONS 1 21. 2 3 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. 4 On or about March 19, 2020, California Governor Newsom issued 5 Executive Order N-33-20 in which he ordered “all residents are directed to immediate 6 heed the current State public health directives.”2 23. 7 On or about May 4, 2020, California Governor Newsom issued Executive 8 Order N-60-20 in which he ordered “All residents are directed to continue to obey State 9 public health directives, as made available at https//covid19.ca.gov/stay-home-except- 10 for-essential needs/ and elsewhere as the State Public Health Officer may provide.” Ex. 11 1. 12 24. On July 17, 2020 Newsom announced a framework to reopening schools.3 13 25. Under his plan, reopening hinges on not being on the county monitoring 14 list for two weeks.4 26. 15 “Schools and school districts may reopen for in-person instruction at any 16 time if they are located in a local health jurisdiction (LHJ) that has not been on the 17 county monitoring list within the prior14 days.”5 27. 18 The plan also includes a waiver procedure: 19 20 21 22 23 24 25 26 27 28 1 Available as of the date of this filing: https://www.gov.ca.gov/wpcontent/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf. 2 Available as of the date of filing: https://www.gov.ca.gov/wpcontent/uploads/2020/03/EO-N-33-20-COVID-19-HEALTH-ORDER-03.19.2020002.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. 9 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 10 of 35 Page ID #:10 1 “A waiver of this criteria may be granted by the local health officer for 2 elementary schools to open for in-person instruction. A waiver may only be 3 granted if one is requested by the superintendent (or equivalent for charter 4 or private schools), in consultation with labor, parent and community 5 organizations. Local health officers must review local community 6 epidemiological data, consider other public health interventions, and 7 consult with CDPH when considering a waiver request.”6 8 28. 9 10 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. 11 California Department of Public Health (CDPH) has provided guidance to 12 similarly situated industries, namely camps8 and childcare9, allowing them to remain 13 open, but guidance for schools10 reveal that schools are subject to more stringent 14 standards that defy reason. 15 30. Currently, there are 32 counties on the watchlist.11 16 31. There are currently 5.9 million students K-12 in California.12 17 18 19 20 21 22 23 24 25 26 27 28 6 Id. Available as of the date of filing: https://thehill.com/homenews/state-watch/508105heres-your-states-plan-for-reopening-schools. 8 Available as of the date of filing: https://files.covid19.ca.gov/pdf/guidancedaycamps.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/guidanceschools.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. 10 7 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 11 of 35 Page ID #:11 32. 1 As of July 14, 2020, there are 8,433 Child Care centers opened in the state 2 of California and a total of 24,915 licensed Family Child Care Homes for a total of 3 33,348 total facilities.13 4 5 6 7 8 9 The U.S. Department of Education Is Encouraging Schools to Open 10 33. During a July 8 briefing conducted by the Vice President and the 11 coronavirus task force, the United States Secretary of Education, Betsy DeVos, stated 12 “[t]here were a number of schools and districts across the country that did an awesome 13 job of transitioning this spring. And there were a lot in which I and state school leaders 14 were disappointed in that they didn't figure out how to continue to serve their students. 15 Too many of them just gave up. The Center for Reinventing Public Education [CRPE] 16 said that only 10 percent across the board provided any kind of real curriculum and 17 instruction program.”14 18 19 34. The United States Department of Education spent approximately $8.3 billion on California K-12 schools for the 2019-2020 school year.15 20 35. Not providing education for America’s children is not a choice. “It would 21 fail America’s students, and it would fail taxpayers who pay high taxes for their 22 education.”16 23 24 25 26 27 28 13 Available as of the date of filing: https://cdss.ca.gov/Portals/9/AdditionalResources/Research-and-Data/DSSDS/ChildCare-7-19.pdf. 14 Available as of the date of filing: https://www.whitehouse.gov/briefingsstatements/press-briefing-vice-president-pence-members-coronavirus-task-force-july-82020/. 15 Available as of the date of filing: https://lao.ca.gov/Education/EdBudget/Details/331. 16 Id. 11 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 12 of 35 Page ID #:12 36. 1 Devos also quotes The American Academy of Pediatrics, “Keeping 2 schools closed ‘places children and adolescents at considerable risk of morbidity and, in 3 some cases, mortality.’” The Pediatrics guidance concluded that everyone “should start 4 with a goal of having students physically present in school.” “Fully open” and “fully 5 operational” means that students need a full school year or more, and it’s expected it 6 will look different depending on where you are.”17 “Ultimately, it’s not a matter of ‘if’ 7 schools should reopen, it’s simply a matter of ‘how.’ They must fully open, and they 8 must be fully operational.”18 37. 9 CRPE found many disparities among schools.19 In a new report involving a 10 nationally representative sample of 477 school systems, statistical weights were applied 11 to provide a nationally representative sample of U.S. school districts. CRPE was able to 12 compare remote education in districts in different types of communities and with 13 different student characteristics. The original cohort of districts followed showed 14 increasing clarity and expectations for instruction, tracking student engagement, and 15 progress monitoring. CRPE found a “sobering story… just one in three districts expect 16 teachers to provide instruction, track student engagement, or monitor academic progress 17 for all students… Far too many districts are leaving learning to chance during the 18 coronavirus closures.”20 38. 19 CRPE also notes, “[e]xperience tells us that low expectations for 20 instruction bode poorly for the students who faced the greatest challenges: those in low- 21 income households, those with disabilities, those who speak a language other than 22 English at home.”21 23 17 24 25 26 27 28 Id.; full report available as of the date of filing: https://services.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinicalguidance/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-schoolsleave-learning-chance-during-pandemic. 20 Id. 21 Id. 12 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 13 of 35 Page ID #:13 39. 1 “Tracking student progress by collecting work for review, assessing 2 students’ progress toward academic benchmarks, or grading their work is the best way 3 to gauge if students are continuing to learn in their remote settings. It may also be our 4 only way to get a sense of gaps in students’ learning that may emerge before the fall, 5 when districts may be able to assess where students stand. Again, we found worrisome 6 trends in the expectations districts set. Just 42 percent expect teachers to collect student 7 work, grade it, and include it in final course grades for at least some students (typically 8 those in middle and upper grades).”22 40. 9 The CRPE found a rural-urban divide. “This rural-urban divide in 10 expectations is stark—far more so than the gap in instruction between districts with 11 high concentrations of students who qualify for free or reduced-price lunch. When we 12 divide the sample into quartiles based on the district’s concentration of economically 13 disadvantaged students, we do not see a clear divide between the districts with the 14 highest and lowest quartiles in terms of expectations for instruction, tracking student 15 engagement, or progress monitoring.”23 41. 16 “More affluent school districts are more likely to require live video 17 instruction from teachers. While expectations around synchronous, or real-time, 18 teaching are uncommon across the board (expected in 21.8 percent of districts), only 19 14.5 percent of school districts with the highest concentration of students receiving free 20 or reduced-price lunch expect teachers to provide live instruction. The most affluent 25 21 percent of districts in our sample are twice as likely to expect real-time teaching.”24 22 42. 23 notes.25 School closings also disproportionately affects minorities, as the NAACP 24 25 26 27 28 22 Id. Id. 24 Id. 25 Available as of the day of filing: https://naacp.org/coronavirus/coronavirus-impacton-students-and-education-systems/ 13 23 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 14 of 35 Page ID #:14 43. 1 “For students of color at all levels across the country, school closings 2 create problems even more urgent than the interruption of their educations. Schools also 3 serve as a community nexus for food and housing. Many Black students are eligible for 4 the federal Free or Reduced-Price Lunch Program (FRPL). Fall 2016 data from the 5 National Center on Education Statistics show that for high-poverty schools where more 6 than 75% of students are eligible for FRPL, Blacks students accounted for 44% of those 7 attending. At schools where 50-75% percent of students are eligible for FRLP, Black 8 students made up 30% of the student population. For students who rely on their schools 9 as a reliable source of daily meals, school closings leave a critical gap. The Secretary of 10 Agriculture is granted waiver authority with respect to the student lunch law (under the 11 Meals Act), including regarding nutritional content. This is a double-edged sword. It is 12 important for the Secretary to be able to move quickly to get meals to students, 13 including outside the school and in individual settings. Yet even here some guardrails 14 must remain in place. We cannot go back to the days when ketchup counted as a 15 vegetable for school lunches.”26 16 American Academy of Pediatrics Recommends Students 17 Physically Present in Schools 44. 18 In late June, the American Academy of Pediatrics (“AAP”) “strongly” 19 recommended that “the coming school year should start with a goal of having students 20 physical present in school.”27 45. 21 The AAP noted the health benefits that would otherwise be lost such as 22 “child . . . development,” “social and emotional skills,” “reliable nutrition,” 23 physical/speech and mental health therapy,” and “opportunities for physical activity.”28 24 25 26 27 28 26 Id. 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/clinicalguidance/covid-19-planning-considerations-return-to-in-person-education-in-schools/. 28 Id. at 1st para. 14 27 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 15 of 35 Page ID #:15 46. 1 2 disproportionately affect minorities and those of less socioeconomic means.29 Studies Show that Open Schools Present Minimal Risk 3 47. 4 5 The AAP also noted that the lack of “in-person learning” could 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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 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 22 49. On March 30, 2020, the Australian Research Council released a study that 23 looked at the early data from China, Singapore, South Korea, Japan, and Iran. The study 24 concluded that while “SARS-CoV-2 can cause mild disease in children, the data 25 26 27 28 29 Id. 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/coviddata/covidview/index.html#hospitalizations 15 30 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 16 of 35 Page ID #:16 1 available to date suggests that children have not played a substantive role in the intra- 2 household transmission of SARS-CoV-2.32 50. 3 On April 26, 2020, another Australian study found no evidence of children 4 infecting teachers.33 The study concluded that the “spread of COVID-19 within NSW 5 (New South Wales) schools has been very limited.”34 This study also found that unlike 6 other respiratory viruses, children are not the primary drivers of the spread of COVID- 7 19.35 51. 8 On May 18, 2020, during a video conference of ministers of education 9 with the Council of the European Union, it was reported that since the reopening of 10 schools in 22 member states, there had been no increase in infections of COVID-19 11 among students, teachers and parents.36 52. 12 On May 28, 2020, a study was released showing that there was no 13 evidence of secondary transmission of COVID-19 from children attending school in 14 Ireland.37 53. 15 On June 23, 2020, the Institute Pasteur after studying 1,340 people linked 16 to primary schools in France released a study in which they found that infected children 17 did not spread the virus to other children or to teachers or other school staff.38 18 19 20 21 22 23 24 25 26 27 28 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/202004/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-eumember-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/10.2807/15607917.ES.2020.25.21.2000903#html_fulltext. 38 Available as of the date of filing: https://www.pasteur.fr/fr/file/35404/download. 16 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 17 of 35 Page ID #:17 54. 1 2 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 3 COVID-19 among children; 4 5 b. Children are not a major risk group of the COVID-19 disease and seem to 6 play a less important role from the transmission point of view, although 7 more active surveillance and special studies such as school and household 8 transmission studies are warranted; and c. The negative effects of closing schools must be weighed against the 9 10 possible positive indirect effects it might have on the mitigation of the 11 COVID-19 pandemic. 55. 12 July 8, 2020, Prevent Epidemics published a report by the former head of 13 the Centers for Disease Control and Prevention. In this report titled “Reopening 14 America’s Schools: A Public Health Approach” they found that the evidence “suggests 15 that children may play a smaller role in transmission of COVID-19 than adults.”40 56. 16 On July 15, 2020, a study of 2,000 German school children was released 17 that concluded that schools and young people do not play a significant role in the 18 transmission of the coronavirus.41 This study found that schools in Germany did not 19 become hotspots after they were reopened.42 20 21 22 23 24 25 26 27 28 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/wpcontent/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-coronavirusspreads-in-schools. Summary of study available in German as of the date of filing: https://tu-dresden.de/med/mf/die-fakultaet/newsuebersicht/immunisierungsgradgeringer-als-erwartet-schulen-haben-sich-nicht-zu-hotspots-entwickelt. 42 Id. 17 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 18 of 35 Page ID #:18 Studies Show that the Digital Divide Harms Students 1 57. 2 Another study noted “there are many reasons to believe the COVID-19 3 impacts might be larger for children in poverty and children of color,” citing (1) the 4 disproportionately higher rate of COVID-19 infections and deaths and worse effect of 5 the economic downturn on African American and Hispanic parents, and (2) the “digital 6 divide in technology and internet access by race/ethnicity and socioeconomic status.” 43 58. 7 This digital divide is supported by surveys, such as one that showed that: 8 (1) 41% of respondents stated that “not having a computer or tablet or enough available 9 devices” was a “top barrier” to distance learning, while only 37% said that their child’s 10 school had lent mobile technology devices; and (2) 71% of African American families 11 and 69% of families with a household income of less than $50,000 stating that lending 12 mobile technology devices would be very helpful for families like theirs.44 This survey 13 comports with the “evidence that, even when teachers are making themselves and their 14 instructional materials available virtually, many students lack the means to access 15 online.”45 59. 16 A Brown University study estimated those negative impacts on children to 17 be a loss of 63-68% of the learning gains in reading relative to a typical school year and 18 a loss of 37-50% in learning gains in math.46 19 60. 20 math.”47 In some grades, students may come back close to a “full year behind in 21 22 23 24 25 26 27 28 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-covid19-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. 18 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 19 of 35 Page ID #:19 61. 1 The fact that this “digital divide” is a factor in the disproportionate effect 2 of school shutdowns is even more troubling when data and anecdotal evidence show 3 that remote learning encourages decreased teacher interaction with students.48 62. 4 Less than two weeks after the school shutdown on March 16, 2020, the Los 5 Angeles School District officials admitted that 15,000 students are completely 6 unaccounted for and more than 40,000 had not been in daily contact with their 7 teachers.49 63. 8 9 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 10 technically challenged have been unable to help their children get online. Teachers 11 report children who are unable to respond online because they are babysitting their 12 siblings, also home from school, while parents work to keep the family housed. Even 13 the most diligent of teachers cannot provide extra attention to a struggling student in a 14 class as they might in person. Student’s Futures are Already Affected 15 64. 16 FAFSA (Free Application for Federal Student Aid) and college 17 applications are down.50 This certainly does not align with goals for college and 18 preparing for future. Special Education Students are Disadvantaged by Distance Learning 19 65. 20 Under federal law, students with disabilities are guaranteed a Free, 21 22 23 24 25 26 27 28 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-losangeles-schools-15000-high-school-students-absent. 50 Available as of the date of filing: https://www.fastweb.com/studentnews/articles/coronavirus-impacts-fafsa-applications-college-enrollment. 19 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 20 of 35 Page ID #:20 1 Appropriate Public Education (FAPE), as incorporated through the IDEA ACT 34 2 C.F.R. § 300.101and Title III of the Americans with Disabilities Act of 1990 (“ADA”), 3 § 504 of the Rehabilitation Act of 1973.51 66. 4 5 The federal government allocates approximately $1.2 billion for California for special education each year.52 67. 6 Students with disabilities have been especially vulnerable to distance 7 learning, as it is common for a student’s individualized education program (IEP) to 8 have individualized instruction, like a one-on-one aide, for example. When school are 9 closed, it is difficult, and sometimes impossible to implement a student’s IEP. Not 10 following an IEP can cause grave consequences such as regression. 68. 11 Many parents of special needs children in California have reported that 12 their children received none, or nearly none, of the individualized instruction 13 guaranteed by law. Frustrated instructors simply gave up when faced with technology 14 challenges, while others didn’t try at all, and many school districts made zero provision 15 for delivering these federally mandated services to children, despite the federal funding 16 provided to the state for them. 69. 17 18 schools is critical for special needs children. Distance-Only Schools Pose Child Safety Concerns 19 70. 20 21 While not solely unique to students with disabilities, socialization in As mandatory reporters, teachers who have daily contact with children are in the best position to notice and report suspected child abuse. 71. 22 Nationwide, “stay at home” does not mean “safe at home” as a report from 23 RAINN (Rape, Abuse, & Incest National Network) describes. “Many minors are now 24 quarantined at home with their abuser. Meanwhile, these kids are cut off from their 25 safety net ― the teachers, coaches, and friends’ parents who are most likely to notice 26 27 28 51 20 U.S.C.A. § 1412; see 42 U.S.C.A. § 12132; see 29 USCA § 794. Available as of the date of filing: https://lao.ca.gov/Publications/Report/4110#Introduction. 20 52 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 21 of 35 Page ID #:21 1 and report suspected abuse….As a result, abuse reports to many state authorities have 2 declined — not because there is less abuse taking place, but because children have less 3 contact with adults outside the home who could potentially spot and report abuse. 4 Sadly, it is likely that the risk of children being sexually abused will increase as shelter- 5 in-place orders continue — one more tragic consequence of the public health crisis the 6 country currently faces.”53 72. 7 Child abuse reports have also declined, but hospitals are reporting higher 8 numbers – this is concerning because abuse is not being detected in time (i.e., before an 9 abuse incident requiring hospitalization). In San Diego, during the months of April and 10 May, 24 children were reported as being treated for abuse symptoms which is double 11 what they normally see in the two-month period. Other locations have seen an increase, 12 including Jacksonville, Florida (8 abusive head trauma cases in March and April instead 13 of 3) and Fort Worth, Texas (9 severe cases at a hospital since March, when they usually 14 only have 6 in the whole year). One California School District’s Effort to Prepare to Open 15 73. 16 As an elected member of the Palos Verdes Peninsula Unified School District 17 (“PVPUSD”) which is located in Los Angeles County, plaintiff Brach was active in the 18 process of preparing the school district in reopening the schools. 19 74. Brach was involved in preparing a “Return to School” survey. 20 75. This survey found that over 60% of parents in the district believed that there 21 was not enough face-to-face teaching time during the initial shutdown. 76. 22 23 normal in-person setting rather than return to the virtual learning program. 77. 24 25 Over 60% of parents also preferred that their children attend school in a Among teachers, over 60% of the teachers were comfortable with returning to teach school. 26 27 28 53 Available as of the date of filing: https://www.rainn.org/news/first-time-ever-minorsmake-half-visitors-national-sexual-assault-hotline 21 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 22 of 35 Page ID #:22 1 78. The survey also showed that due to financial constraints, if the school did 2 not return to in-person setting, over 7% of parents of TK – 5th grade children and over 3 19% of parents of parents of children between 6th - 12th grade would have to leave their 4 children home without supervision. 5 6 7 79. PVPUSD established a reopening committee that included staff, medical professionals and parents. 80. PVPUSD was prepared to implement screening including providing a digital 8 app so parents could answer questions each morning regarding symptoms, and the school 9 was prepared to take students’ temperature to verify the app’s data. 10 81. PVPUSD also was prepared to implement the following mitigation strategy: 11 a. Staggered arrival times; 12 b. Designated entrance and exit routes; 13 c. Purchase no touch thermometers and handle the logistics of temp taking to align with the number of thermometers; 14 15 d. Procure masks including N95 masks for nurses and cloth masks for students; 16 e. Provide water filling stations as no ability to use drinking fountains; 17 f. Provide grab/go meals for lunch; 18 g. Plexiglas for serving and cashier stations; 19 h. Investigation of HVAC system to support air circulation if windows had to be closed; 20 21 i. Order signage for directional guides and handwashing reminders; 22 j. Handwashing stations with foot pedal; 23 k. Install touch free sanitizing; 24 l. Instituted protocols for high touch areas. 25 82. PVPUSD was ready to work with the teachers, parents, and students to 26 provide options. The 60% of teachers and parents who wanted in-person learning were 27 going to be able to choose that option while the other remainder could continue their 28 learning with virtual study. 22 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 23 of 35 Page ID #:23 Newsom’s Doomsday Predictions Have Not Proven True 1 83. 2 Governor Newsom’s rationale for Executive Order N-33-20, his original 3 shelter in place order was to “bend the curve.”54 He stated that “[i]n some parts of our 4 state, our case rate is doubling every four days,” and that “[t]he point of the stay at 5 home order is to make those numbers moot.”55 The Governor added that one goal was 6 to slowdown transmission enough to reduce the strain it might place on hospital 7 resources.56 8 84. 9 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. 10 Governor Newsom cited a model showing that as of March 19, 2020, 56 11 percent of Californians, or more than 25 million people, could be infected over the next 12 eight weeks.58 13 86. Contrastingly, several infectious disease experts, including Professor of 14 Epidemiology John P.A. Ioannidis of Stanford University, called this an extreme, 15 worst-case scenario that was unlikely to happen – and they turned out to be correct.59 87. 16 Upon information and belief, another piece of flawed data that drove 17 California’s and Santa Clara County’s original, onerous shelter-in-place orders was an 18 54 19 20 21 22 23 24 25 26 27 28 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_b2oJ:https://www.sfchronicle.com/health/article/Newsom-56-of-Californians-could-getcoronavirus-15144438.php+&cd=1&hl=en&ct=clnk&gl=us. 23 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 24 of 35 Page ID #:24 1 incorrect assumption that the R0 of COVID-19 was 5.7. 88. 2 3 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. 4 Upon information and belief, part of the data that the Governor depended 5 on for his claim—of 25 million infections in California within eight weeks—during his 6 March 19, 2020 announcement was the initial rate of infection in Wuhan, the 7 originating epicenter of COVID-19. Then and there, the numbers apparently showed a 8 R0 of 5.7.61 90. 9 However, now, the R0 of COVID-19 without mitigation efforts is 10 understood to be approximately 2.2-2.7.62 With mitigation efforts, the R0 of COVID-19 11 has been drive further down. 91. 12 More egregiously, the COVID-19 death rate projections model on which 13 Governor Newsom relied for implementing a state of emergency and mass quarantine 14 of healthy Californians, turned out to be grossly flawed.63 92. 15 Governor Newsom’s inexplicable restrictions on school reopening is not 16 based in scientific facts, and is completely arbitrary especially in light of the fact that 17 California allows all of the functional components of schools allowed in camps and 18 childcare. More fundamentally, the school closing “plan” is no plan at all, and ignores 19 the state’s legal duties to California’s children. 20 21 22 /// 23 /// 24 25 26 27 28 60 https://www.nytimes.com/2020/04/23/world/europe/coronavirus-R0-explainer.html. Available as of the date of filing: https://wwwnc.cdc.gov/eid/article/26/7/200282_article. 62 Id. 63 Available as of the date of filing: https://www.statnews.com/2020/04/17/influentialcovid-19-model-uses-flawed-methods-shouldnt-guide-policies-critics-say/. 24 61 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 25 of 35 Page ID #:25 1 CLAIMS 2 FIRST CLAIM FOR RELIEF 3 42 U.S.C. § 1983 – Violation of the Equal Protection Clause 4 Arbitrary School Closures 5 (By All Plaintiffs Against All Defendants) 6 7 8 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 9 affect some groups of citizens differently than others.” Engquist v. Or. Dep’t. of Agric., 10 553 U.S. 591, 601 (2008) (citations omitted). The touchstone of this analysis is whether 11 a state creates disparity “between classes of individuals whose situations are arguably 12 indistinguishable.” Ross v. Moffitt, 417 U.S. 600, 609 (1974). 13 95. The framework for reopening schools facially, and as-applied, arbitrarily 14 treats Plaintiffs’ children (and other minors attending public and private schools) 15 differently from those in nearby school districts; those in childcare; and those attending 16 summer camps, even though all such children and their families are all similarly 17 situated. 18 96. The risk of exposure or transmission within in any particular county is 19 substantially the same whether children are at school, daycare, or at camp, yet only 20 schools are subject to arbitrarily mandated closures. Children at summer camp, daycare, 21 and in school will be in the presence of other children, in an enclosed space, overseen 22 by an older person(s) not comprised of the child’s family unit, for an extended period, 23 and industry guidance issued for schools, camps, and daycare, contains the same or 24 essentially the same protocols for wearing face coverings, physically distancing, 25 hygiene, cleaning, arrival/departure procedures, sharing, checking for signs and 26 symptoms and notification procedures if a child or staff member becomes ill. 27 28 97. Defendants’ mandates arbitrarily restrict access to schools based on the location of the school. Children residing in any particular county, including those 25 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 26 of 35 Page ID #:26 1 counties in which Defendants have forcibly shut down in-person instruction, may still 2 attend private school in nearby counties, despite the differing levels of risk or exposure 3 to the virus, further revealing the arbitrary nature of Defendants’ treatment of Plaintiffs 4 and all others who rely on the public school system. 5 98. There is no rational basis—much less any compelling reason—for 6 allowing Defendants’ arbitrary treatment of schools, which are vital to children’s 7 development, and are subject to more severe restrictions and potentially outright 8 closure. Moreover, apt and less restrictive alternatives to Defendants’ closure regime 9 exist, such as requiring schools to enable distanced learning over the internet, without 10 imposing Defendants’ overbearing, one-size-fits-all regime. 11 99. Defendants intentionally, discriminatorily, and arbitrarily imposed 12 restrictions on the reopening of schools in violation of Plaintiffs’ right to equal 13 protection under the law. 14 100. Plaintiffs have no adequate remedy at law and will suffer serious and 15 irreparable harm to their and/or their children’s constitutional rights unless Defendants 16 are enjoined from implementing and enforcing the State Order and associated guidance 17 documents which restrict the reopening of schools in a manner that violates the Equal 18 Protection Clause. 19 101. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to 20 declaratory relief and temporary, preliminary, and permanent injunctive relief 21 invalidating and restraining enforcement of the State Order and any associated guidance 22 documents. 23 102. Plaintiffs found it necessary to engage the services of private counsel to 24 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of 25 attorneys’ fees pursuant to 42 U.S.C. § 1988. 26 27 /// 28 /// 26 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 27 of 35 Page ID #:27 1 SECOND CLAIM FOR RELIEF 2 42 U.S.C. § 1983 – Violation of Due Process 3 Deprivation of Liberty Without Procedural Due Process of Law 4 (By All Plaintiffs against All Defendants) 5 6 7 103. 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 8 state shall “deprive any person of life, liberty, or property, without due process of law.” 9 U.S. Const. amend XIV. Plaintiffs and their children have a liberty interest in their right 10 to equal access to basic minimum education and in their rights secured by the California 11 Constitution and state law, which includes the right to an education, Cal. Const. art. IX, 12 § 1 (“[a] general diffusion of knowledge and intelligence [is] . . . essential to the 13 preservation of the rights and liberties of the people….”); O’Connell v. Superior Court, 14 141 Cal. App. 4th 1452, 1482 (2006) (students possess a constitutional right to “equal 15 access to a public education system that will teach them the skills they need to succeed 16 as productive members of modern society.”); Butt v. State of California, 4 Cal. 4th 668, 17 681 (1992) (“education is a “uniquely fundamental personal interest in California”); 18 Serrano v. Priest, 5 Cal. 3d 584, 589 (1971) (“the right to an education in our public 19 schools is a fundamental interest …”) and (2) their right to contract freely, without 20 impairment by the State, with private schools for the education of their children. U.S. 21 Const., art. I, § 10; Cal. Const. art. I, § 9. 22 105. Defendants deprive Plaintiffs and/or their children of these rights and 23 liberties without due process of law, in violation of the Fourteenth Amendment to the 24 U.S. Constitution, by (1) mandating distanced-learning in most circumstances, which 25 effectively provides no or unequal access to education; and by (2) substantially 26 impairing Plaintiffs’ ability to contractually obligate schools to complete the in-person 27 instruction of their children that the state refuses to provide. 28 106. Complaint The State Order and Defendants’ enforcement thereof violate Plaintiffs’ 27 Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 28 of 35 Page ID #:28 1 procedural due process rights because (1) Defendants lack any legal authority to issue 2 or enforce the State Order and associate guidance, and therefore deprive Plaintiffs of 3 liberties without any process whatsoever, and (2) Defendants fail to specify standards or 4 protocols applicable to requests for a waiver from compliance with Defendants’ orders. 5 107. Defendants have no authority under either the California Constitution nor 6 any law adopted by the legislature to deprive Plaintiffs or their children of their right to 7 receive an education or to be free of the State’s substantial impairment of contracts— 8 indeed, rights are themselves protected by the California Constitution, U.S. 9 Constitution, and fundamental law; 10 108. California law makes clear that “No state agency shall issue . . . any 11 guideline . . . unless the guideline . . . has been adopted as a regulation filed with the 12 Secretary of State . . . .” Cal. Gov. Code § 11340.5(a). 13 109. Nowhere in the California Emergency Services Act, does it give the 14 Governor the authority to suspend the constitutional rights of Californians or to suspend 15 California statutes. Instead, Cal. Gov. Code §§ 8567, 8571, and 8627 only permit the 16 governor to suspend “regulations” and that these orders must be in writing. However, 17 the Governor has misused his Emergency Powers to mandate that any violation of the 18 State public health directives results in a fine not to exceed $1,000 or by imprisonment 19 not to exceed six months. Cal. Gov. Code §8665. 20 110. In California, a regulation that has not been adopted in compliance with the 21 Administrative Procedure Act is deemed an Underground Regulation and is invalid. See 22 Modesto City Schools v. Education Audits Appeal Panel, 123 Cal.App.4th 1365, 1381 23 (2004). California is one of the few states that requires rulemaking procedure for the 24 adoption of guidance documents. California Practice Guide: Administrative Law 25:45, 25 by Rutter Group. 26 111. Defendant Sonia Y. Angell is not an elected official. However, Defendant 27 Newsom has effectively given Defendant Angell the ability to govern the state of 28 California by guidance shutting down businesses and schools, in the latter case with one 28 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 29 of 35 Page ID #:29 1 stroke of the pen dooming millions of California children to no meaningful education, 2 inadequate education, no provision of special needs instruction, and a myriad of health 3 and safety risks. 4 112. Governor Newsom has been impermissibly delegating executive authority 5 to the Public Health Agency, who in turn has been issuing directives, under the guise of 6 law, with criminal penalties associated for not following order. 7 113. The non-descript waiver process referenced in materials issued by the 8 California Department of Public Health is vague and subject to arbitrary enforcement 9 and implementation: “A waiver may only be granted if one is a requested by the 10 superintendent (or equivalent for charter or private schools), in consultation with labor, 11 parent and community organizations. Local health officers must review local 12 community epidemiological data, consider other public health interventions, and 13 consult with CDPH when considering a waiver request.” 64 Defendants provide no 14 standards by which local health officers are to assess, approve, or reject such waiver 15 requests. What does “in consultation with” mean? Californians are left to guess. 16 114. As such, Plaintiffs and the public lack any meaningful opportunity to seek 17 redress of injuries caused by Defendants’ mandates or by which they may seek to 18 reopen schools based on evidence of changing circumstances, recent research, or the 19 availability of healthcare or health practices to mitigate risks associated with the virus. 20 115. Plaintiffs have no adequate remedy at law and will suffer serious and 21 irreparable harm to their constitutional rights unless Defendants are enjoined from 22 implementing and enforcing the State Order and associated guidance. 23 116. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to 24 declaratory relief and temporary, preliminary, and permanent injunctive relief 25 invalidating and restraining enforcement of the State Order and associated guidance. 26 27 28 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. 29 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 30 of 35 Page ID #:30 1 117. Plaintiffs found it necessary to engage the services of private counsel to 2 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of 3 attorneys’ fees pursuant to 42 U.S.C. § 1988. 4 THIRD CLAIM FOR RELIEF 5 42 U.S.C. § 1983 – Violation of Due Process 6 Deprivation of Substantive Due Process of Law 7 (By All Plaintiffs against All Defendants) 8 9 10 118. 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 11 state shall “deprive any person of life, liberty, or property, without due process of law.” 12 U.S. Const. amend XIV. Plaintiffs and their children have a liberty interest in their right 13 to equal access to basic minimum education and in their rights secured by the California 14 Constitution and state law, which includes the right to an education, Cal. Const. art. IX, 15 § 1 (“[a] general diffusion of knowledge and intelligence [is] . . . essential to the 16 preservation of the rights and liberties of the people….”); O’Connell v. Superior Court, 17 141 Cal. App. 4th 1452, 1482 (2006) (students possess a constitutional right to “equal 18 access to a public education system that will teach them the skills they need to succeed 19 as productive members of modern society.”); Butt v. State of California, 4 Cal. 4th 668, 20 681 (1992) (“education is a “uniquely fundamental personal interest in California”); 21 Serrano v. Priest, 5 Cal. 3d 584, 589 (1971) (“the right to an education in our public 22 schools is a fundamental interest …”) and (2) their right to contract freely, without 23 impairment by the State, with private schools for the education of their children. U.S. 24 Const., art. I, § 10; Cal. Const. art. I, § 9. 25 120. Defendants deprive Plaintiffs and their children of these rights and liberties 26 without due process of law, in violation of the Fourteenth Amendment to the U.S. 27 Constitution, by (1) mandating distanced-learning in most circumstances, which 28 effectively provides no or unequal access to education; and by (2) substantially 30 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 31 of 35 Page ID #:31 1 impairing Plaintiffs’ ability to contractually obligate private schools to complete the in- 2 person instruction of their children that the state refuses to provide. 3 4 121. substantive due process rights as follows: 5 6 The State Order and Defendants’ enforcement thereof violate Plaintiff’s a. fundamental law and the California Constitution entitles Plaintiffs and their children equal access to a basic minimum education. 7 b. the U.S. Constitution entitles Plaintiffs to be free of substantial 8 impairment from the state of their ability to obligate educational institutions to instruct 9 their children by operation of contract law; 10 11 c. Defendants lack any legitimate, rational, or compelling interest for depriving Plaintiffs’ children of their right to an education. 12 d. even if such a legitimate interest existed, the State Order and 13 associated guidance is neither rationally related nor narrowly tailored to further any 14 such interest. 15 122. Plaintiffs have no adequate remedy at law and will suffer serious and 16 irreparable harm to their constitutional rights unless Defendants are enjoined from 17 implementing and enforcing the State Order and associated guidance. 18 123. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to 19 declaratory relief and temporary, preliminary, and permanent injunctive relief 20 invalidating and restraining enforcement of the State Order and associated guidance. 21 124. Plaintiffs found it necessary to engage the services of private counsel to 22 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of 23 attorneys’ fees pursuant to 42 U.S.C. § 1988. 24 25 26 27 /// 28 /// 31 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 32 of 35 Page ID #:32 1 FOURTH CLAIM FOR RELIEF 2 42 U.S.C. § 1983 – Violation of Title VI of Civil Rights Act of 1964 3 Disparate Impact on Racial Minorities 4 (By Christine Ruiz and Z. R. Against All Defendants) 5 6 125. Plaintiffs incorporate herein by reference each and every allegation contained in the preceding paragraphs of this Complaint as though fully set forth herein. 7 126. Federal law conveys to Plaintiffs the right to be free from enforcement of 8 facially discriminatory laws, facially neutral laws adopted with discriminatory intent or 9 purpose, and facially neutral laws causing a disparate impact on racial minorities with 10 regard to federally funded public programs, including California’s public schools. 42 11 U.S.C. 2000d, et seq. (Title VI of the Civil Rights Act of 1964). Section 1983, in turn, 12 creates a private right of action against the deprivation of such federal rights against 13 officials acting under color of state law, despite there being no private right of action 14 under a disparate impact theory pursuant to Title VI itself. See 42 U.S.C. § 1983; 15 Alexander v. Sandoval, 532 U.S. 275, 300 (2001) (Stevens, J., dissenting) (“[l]itigants 16 who in the future wish to enforce the Title VI [disparate impact] regulations against 17 state actors in all likelihood must only reference § 1983 to obtain relief.”) 18 127. Mandatory distance learning facially, and as-applied here, creates a 19 negative, disparate impact on racial minorities, including Plaintiff Christine Ruiz and 20 her son, Z. R., who are Hispanic. Public policy research has confirmed that racial 21 minorities rely more heavily on educational opportunities for gaining equal 22 socioeconomic footing when compared to their non-minority counterparts, occasionally 23 resulting in an increased need for educational services.65 Racial minorities are therefore 24 disproportionally required to devote greater resources to provide themselves and their 25 26 27 28 65 See, e.g., https://calmatters.org/explainers/achievement-gap-california-explainerschools-education-disparities-explained/; https://www.npr.org/2019/02/26/696794821/why-white-school-districts-have-so-muchmore-money. 32 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 33 of 35 Page ID #:33 1 children with the same educational opportunities available to their counterparts – this 2 phenomenon is known as the “education gap.” 3 128. Defendants have acted arbitrarily and with deliberate indifference toward 4 the unduly harsh effects their school restrictions have on Plaintiffs Ruiz and Z. R. and 5 all others racial minorities who must devote additional or unique resources to 6 implement meaningful at-home instruction when compared with non-minorities. 7 129. Plaintiffs have no adequate remedy at law and will suffer serious and 8 irreparable harm to their constitutional rights unless Defendants are enjoined from 9 implementing and enforcing their broad prohibitions on in-person education in 10 11 12 13 14 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 15 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of 16 attorneys’ fees pursuant to 42 U.S.C. § 1988. 17 FIFTH CLAIM FOR RELIEF 18 42 U.S.C. § 1983 – Violation of Federal Disability Rights 19 Failure to Provide Equal Educational Access to Disabled Students 20 (By Plaintiffs Christine Ruiz and Z. R. against All Defendants) 21 22 23 132. 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 24 disabled families and children in California the right to free appropriate public 25 education, individualized education plans conferring meaningful educational benefit, 26 appropriate evaluation, and the right to be free from discrimination on the basis of any 27 disability, including through the exclusion from or deprivation of equal access to the 28 33 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 34 of 35 Page ID #:34 1 educational opportunities. See 20 U.S.C. § 1400, et seq. (Individuals with Disabilities 2 Education Act (“IDEA”)); 42 U.S.C.A. § 12131, et seq., (Title II of the Americans with 3 Disabilities Act of 1990 (“ADA”)); 29 U.S.C. § 794, et seq., (Section 504 of the 4 Rehabilitation Act of 1973). 5 134. Defendants’ arbitrarily imposed restrictions on the reopening of schools, 6 including the forced closure of many public and private schools, deprives Plaintiffs 7 Ruiz and Z. R. of these rights, which are secured by the above-cited federal laws. 8 9 135. 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, 10 by forcibly restricting most private and public schools in California from providing 11 meaningful educational opportunities commensurate with their obligations under 12 federal law. 13 136. Plaintiffs Ruiz and Z. R. have no adequate remedy at law and will suffer 14 serious and irreparable harm in the form of the deprivation of educational access and 15 other educational and non-discrimination rights secured by federal law, unless 16 Defendants are enjoined from implementing and enforcing the school closure. 17 137. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to 18 declaratory relief and temporary, preliminary, and permanent injunctive relief 19 invalidating and restraining enforcement of the State Order and any associated 20 guidance. 21 138. Plaintiffs Ruiz and Z. R. found it necessary to engage the services of 22 private counsel to vindicate their rights under the law. They are therefore entitled to an 23 award of attorneys’ fees pursuant to 42 U.S.C. § 1988. 24 25 26 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 27 guidance, facially and as-applied to Plaintiffs, violates the Equal Protection 28 and Due Process Clauses of the Fourteenth Amendment to the U.S. 34 Complaint Case No. Case 2:20-cv-06472 Document 1 Filed 07/21/20 Page 35 of 35 Page ID #:35 1 Constitution; Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d, et 2 seq.); the Individuals with Disabilities Education Act (20 U.S.C. § 1400, et 3 seq.); Title II of the Americans with Disabilities Act of 1990 (42 U.S.C. § 4 12131, et seq.); and Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 5 § 794, et seq.), and that Plaintiffs’ children should be allowed in-person 6 instruction without delay; 7 • An order temporarily, preliminarily, and permanently enjoining and 8 prohibiting Defendants from enforcing the State Order or otherwise 9 interfering with Plaintiffs’ constitutional rights and federal guarantees; 10 • For attorneys’ fees and costs; 11 • Such other and further relief as the Court deems appropriate and just. 12 Date: July 21, 2020 13 DHILLON LAW GROUP INC. By: /s/ Harmeet K. Dhillon Harmeet K. Dhillon Mark P. Meuser Gregory R. Michael 14 15 16 17 Attorneys for Plaintiffs 18 19 20 21 22 23 24 25 26 27 28 35 Complaint Case No.