The board voted 4-0 during closed session in favor of filing the suit, and then had an attorney read a press release in which they said Newsom has abused his authority by indefinitely continuing to issue health edicts under a state of emergency.
Last month, state officials ordered all students, teachers, staff and visitors on school campuses to wear face masks while indoors in the coming school year.
“He has now misused that power in a way that threatens serious harm to Orange County’s children,” board members wrote.
Board members Mari Barke, Tim Shaw, Lisa Sparks and Ken Williams voted in favor of filing the lawsuit during a special meeting Tuesday that featured only one item on the agenda: litigation. Board member Beckie Gomez, who attended the beginning of the meeting, left at 4:30 p.m and was not present for the vote.
RELATED: Face mask mandate in schools raises ire, praise and confusion in Orange County
Barke, the board president, said after the meeting that with schools about to reopen for the new academic year, “children are our top priority.”
Newsom’s office could not immediately be reached for comment.
In the past month, case rates across the state and locally have surged. On Aug. 2, Orange County reported an average of 626 new COVID-19 cases a day for the previous seven days, up from 72 new cases a day reported on July 2.
Board members, who are elected, have been vocal about their views against face masks in schools. But while the state said its masks-in-class mandate will be enforced by school districts, the Board of Education does not oversee any of the county’s 27 districts.
In addition to saying Newsom and officials in the state’s executive agencies are overstepping their authority with the mask mandate, the board also questioned the validity of face masks.
“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 rule making requirements.”
Numerous studies — including a survey of research around the world conducted earlier this year by the National Academy of Sciences — have found that wearing masks slows the spread of COVID-19. And the federal Centers for Disease Control is currently urging Americans to wear face masks, including in schools, to slow the spread of COVID-19.
On Tuesday, Board members did not present evidence that face masks harm children. In the past, they have said that the continuous use of face masks hurts students’ education as well as their emotional well-being. Children learning English and those with special needs especially need to see a teacher’s face, they said.
The state’s in-class mask order order has added a layer of controversy during the pandemic, with some parents supporting the move and others saying it will harm their children. In Orange County, at least three school boards – representing Capistrano, Placentia-Yorba Linda and Saddleback Unified school districts – voted for resolutions this summer that ask the state to ease the mandate and make face masks optional.
The Orange County Board of Education will be represented for free by Tyler & Bursch, a law firm with offices in Anaheim and Murrieta.
This would mark the second pandemic-related lawsuit the board files against state officials.
Last August, the board filed a lawsuit against Newsom and the state’s public health officer, Sonia Y. Angell, seeking in-person learning at a time when school campuses across California closed down due to the pandemic. That lawsuit went straight to the California Supreme Court, where Justices asked Gov. Newsom to respond to the Board’s petition and a second related lawsuit. On Sept. 9, the Court refused to hear the case, which alleged that actions by Newsom and Angell were unconstitutional and violated the right to equal access to education.
That lawsuit also was represented pro-bono by Tyler & Bursch.
On July 22, two parent groups – Let Them Breathe and Reopen California Schools – filed a lawsuit against Newsom and state public health officials, seeking to end the school face mask mandate.