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Schools Losing Out So Far in Court Challenges to Pandemic Orders

By Mark Walsh — September 10, 2020 3 min read

Legal clashes over reopening schools amid the coronavirus pandemic are continuing, but challengers of state executive orders—whether to open schools or keep them closed—are having trouble getting any practical relief from the courts so far.

The California Supreme Court late Wednesday denied relief to a Fresno-area private Christian school that had asked the court to overturn California Gov. Gavin Newsom’s orders that limit public and private school reopenings in the counties that have been on the state’s monitoring list for the previous 14 days. The state high court also denied relief to one county education agency and a charter school.

In Iowa, meanwhile, two state judges this week issued separate rulings favorable to Republican Gov. Kim Reynolds’s order requiring school districts to hold at least 50 percent of classes in person.

In Florida, meanwhile, challengers to a state executive order requiring all schools to offer in-person instruction five days a week won a hard-fought injunction blocking the policy from a state trial judge in August. But a state appellate court soon stayed the effect of that decision and issued an opinion last week indicating that the policy of Republican Gov. Ron DeSantis’s administration had a strong likelihood of being upheld.

Those legal battles, among several around the country, all come as the traditional school year is opening.

In the California case, Immanuel Schools in Reedley, Calif., and a handful of other private schools filed their challenge directly in the state supreme court, arguing that Newsom exceeded his authority under the state constitution and that his closure orders violated the state constitutional right to education and the right of private schools to contract. A similar challenge was filed by the Orange County Board of Education and the Palm Lane Charter School in Anaheim.

The school took it as a good sign when the state high court required the state to file a brief defending the orders.

On Sept. 9, after receiving briefs from both sides, the California Supreme Court issued a short order denying the request of Immanuel Schools and the Orange County board that it take up the constitutionality of Newsom’s orders.

“The petition for immediate stay and peremptory writ of mandate in the first instance is denied,” the state high court said in Immanuel Schools v. Newsom.

Robert Tyler, a lawyer for the schools, told The Fresno Bee that the schools’ would proceed with challenging the governor’s orders in lower state courts.

In the meantime, the 600-student school opened Aug. 13 in defiance of the orders and has remained open since then. The school even defeated a separate effort by Fresno County authorities for a temporary restraining order to shut down the school. But proceedings in that separate lawsuit will continue with a Sept. 15 hearing on a preliminary injunction sought by the county to close the school.

In Iowa, state trial judges issued preliminary rulings this week that rejected efforts by the 33,000-student Des Moines and 14,000-student Iowa City school districts, along with the Iowa State Education Association, to block Reynolds’s school reopening orders.

In Des Moines Independent Community School District v. Reynolds, Judge Jeffrey Farrell of Polk County District Court said the Des Moines district was using “a more robust collection” of risk factors than “the simplistic model used by state education officials.”

But school districts cannot reverse orders by the state Department of Education “because it disregarded the facts,” the judge said.

“School districts are a creation of state law and have no rights beyond those given by the legislature,” Farrell said.

The Des Moines district’s request to move to remote learning “is well-supported by the facts,” the judge said. “I am sympathetic to its arguments of local control, as its board and management staff are in a better condition to understand the conditions and obstacles in the district than officials at the state level. However, [the education department’s] decision is not really one of fact, but one of policy as directed by the legislature and the governor.”

In Iowa State Education Association v. Reynolds, Judge Mary E. Chiccelly of Johnson County District Court held that the state constitution gives the governor broad emergency powers. She noted that state officials have given the Iowa City district temporary approval for all-remote learning because Johnson County has a COVID-19 positivity rate that exceeds the 15 percent threshold in the governor’s order, which cut against its need for emergency injunctive relief.

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

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