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California Private School in Legal Storm as It Reopens in Defiance of Health Orders

By Mark Walsh — August 27, 2020 5 min read

A small-town Christian school in California has defied state and local health authorities by reopening for in-person instruction despite being in a county with a high rate of COVID-19. The school’s efforts put it at the center of two legal cases that may set precedents for all of California as that state and others debate reopening schools amid the pandemic.

Immanuel Schools, a 600-student K-12 institution in Reedley, Calif., this week successfully fought off a legal effort by Fresno County for a temporary restraining order that would put a stop to on-campus instruction that began Aug. 13.

The school is also part of a larger legal effort challenging California Gov. Gavin Newsom’s orders that limit school reopenings in the counties that have been on the state’s monitoring list for the previous 14 days. About 30 counties remain on the state list, including Fresno County.

Immanuel Schools and several other private schools filed a petition for a writ of mandate directly in the California Supreme Court on Aug. 21, asking the state’s highest court to rule that the Democratic governor exceeded his authority under the state constitution and that his orders violated the state constitutional right to education and the right of private schools to contract.

The state supreme court this week asked the state to respond to the schools’ request, as well as to a companion writ filed by two public school entities, the Orange County Board of Education and the Palm Lane Charter School in Anaheim. The state high court actions on behalf of both the private and public school litigants were filed by the same law firm, Tyler & Bursch of Murrieta, Calif.

“The governor’s decisions with regard to schools, both private and public, negatively affect students more than others,” Jennifer Bursch, a partner with the firm, said in an interview. “Every private school is dealing with a very difficult choice. That is, to risk the school’s financial security in the future and potentially have to close their doors, or to open and deal with whatever comes next from the county or the state.”

The California battle is one more in a growing list of legal clashes over the reopening of schools amid COVID-19. They generally take two forms. The first involves efforts primarily by parents and private schools to get out from under state orders that bar or restrict in-person instruction, at least as coronavirus infections have swelled. The other involves states such as Florida and Iowa where Republican governors have sought to mandate the reopening of schools and faced opposition from teachers’ unions and other parties.

A Florida state judge this week blocked that state’s effort to mandate most public schools reopen by Aug. 31. The state has appealed, but on Thursday, the trial judge lifted an automatic stay of his ruling, thus allowing Florida districts to decide for themselves whether to open schools or not.

A Suggestion of ‘Herd Immunity’

Immanuel Schools was founded in 1926 as a Bible school by the Mennonite Brethren Church. A high school opened in 1944, with junior high and elementary grades being added later, according to the school’s website.

“For the majority of students, it is clear that an online education is not a substitute for an in-person, Christ-centered, relationally based classroom setting,” Ryan Wood, the superintendent of Immanuel Schools, said in a statement this month. “While the Public Health Departments attempt to ‘protect’ us from COVID-19, the CDC and medical experts attest that they are creating new public health problems for our children by not allowing them on campus for learning.”

The school points out in court papers that it contracted with a clinical pathologist, Paul Atmajian, who conducted an antibody test for COVID-19 on 198 people at the school to assess “herd immunity” within the community.

“Through the antibody tests, Dr. Atmajian determined that at least 59 percent of petitioner Immanuel School had developed antibodies for COVID-19,” the school said, adding that the pathologist adopted additional controls to reach a more reliable conclusion that the school’s community possessed herd immunity.

Fresno County’s health officer issued a written order on Aug. 13 for Immanuel Schools to remain closed, on penalty of civil fines of $1,000 per day.

On Aug. 18, the acting state health officer wrote to Wood to say that by reopening contrary to state and county orders, “Immanuel Schools are jeopardizing the health of Immanuel students, family, faculty, and staff, but also increasing the risk of community transmission in Fresno County.”

The state’s orders and directives, “while representing a sacrifice for all Californians, are critical to reducing the spread of the virus and protecting the health of the school community and the broader Fresno County population,” the letter said. “They are also mandatory.”

Still, the school remained open. On Aug. 20, Fresno County sued Immanuel Schools in state court, seeking a temporary restraining order and a preliminary injunction that would bar the school from conducting in-person instruction.

On Aug. 25, supporters of the school gathered outside the B.F. Sisk Courthouse in downtown Fresno as state Superior Court Judge D. Tyler Tharpe considered arguments on both sides for the temporary restraining order. At the end of the hearing, he denied the TRO.

“The county must make an affirmative factual showing and a declaration pertaining competent testimony based on personal knowledge of irreparable harm, immediate danger or any other steps or a basis for granting relief again on an ex parte basis. The court finds that the county has not made that showing thus far and it denies the issuance of a temporary restraining order,” Tharpe said from the bench, according to several news accounts.

Although the judge set a Sept. 15 hearing for the preliminary injunction, when the county can offer more extensive arguments for closing the school, the school’s supporters rejoiced.

“Since returning to school on Aug.13, we have seen God’s hand move mightily on our campus and throughout our community,” Wood, the private school’s leader, said in a message on Facebook.

Daniel C. Cederborg, the county counsel of Fresno County who sued Immanuel Schools to enforce state and county orders, said he is an evangelical Christian himself and understands the desire of private schools and their communities to go back to school. But he was skeptical of the school’s assertions about having achieved herd immunity.

“The consensus is, we don’t know enough yet to relieve the health orders,” he said.

Cederborg noted that the state supreme court has set an aggressive briefing schedule for the separate actions challenging the governor’s orders, with the state’s response to the two petitions for mandate due on Aug. 28 and a reply from the private school and public school litigants due on Sept. 1.

“My guess is that we will be getting a decision from the Supreme Court that will decide this statewide,” he said.

A version of this news article first appeared in The School Law Blog.

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