FILE - NY classroom 6-30-2020

A high school classroom with empty desks and no students is seen June 2, 2020, in West Lislip, New York during the coronavirus pandemic lockdown.

(The Center Square) – The California Supreme Court denied two petitions for review of Gov. Gavin Newsom’s ban on in-person educational instruction. In doing so, the court ruled the case should first be tried through the lower superior courts.

Immanuel Schools, in Fresno County, announced it would be opening its campus to hold in-person instruction Aug. 13 for its more than 600 students in defiance of the governor’s and county’s order.

The county sued and ordered the school to close. It stated that failure to comply was a crime subject to imprisonment and fines, in addition to facing civil penalties of up to $1,000 per violation per day, injunctive relief, and attorney fees.

The school argues the state and county orders are unconstitutional and that “preventing schools from teaching students on campus is detrimental to students' academic, physical, emotional, and spiritual development, while also imposing burden on working families.”

On July 28, the Orange County Board of Education voted 4-1 to sue the state and the state department of public health, seeking to halt the governor’s July 17 order.

“The California Supreme Court has interpreted the California Constitution to require that California school children have a constitutional right to substantially equal opportunities for learning,” the board maintains.

The governor’s July 17 order and Aug. 28 4-Tier Plan for “living with COVID-19” do “not adequately ensure that children of working single parents are adequately educated through distance learning,” the board adds.

Immanuel Schools and the Orange County Board of Education, represented by Tyler & Bursch, LLP and Advocates for Faith & Freedom, filed two petitions in the California Supreme Court on Aug. 21 seeking an injunction to halt Newsom’s orders.

On Aug. 24, the court ordered Newsom’s office to respond with preliminary oppositions to both petitions filed by the plaintiffs.

On Sept. 9, the state Supreme Court denied the plaintiff’s petition.

Robert Tyler, partner at Tyler & Bursch, said of the ruling, “This court entry has no effect of law. It simply means that we will have to start the litigation by filing our claims in the superior courts because the court is not willing to permit this case to skip the lower courts. Once we proceed through the normal process, we believe we will still be victorious in the end.”

By first going to the state Supreme Court, the petitioners, which include public and private schools and parents, hoped the court would grant them immediate relief “to prevent the inevitable harm they are experiencing with their students.”

“Schools facilitate more than education,” the plaintiffs argue. In addition to providing safe and constructive learning environments, teachers and administrators have long acted as the primary agents who report neglect and child abuse cases. With no in-person observation of children, such reporting has already fallen by roughly 30 percent nationwide since school closures last year. More children will fall through the cracks, and fall behind with their grades, the longer the schools remain closed, they argue.

“Although science has proved that the risk of harm from COVID-19 is insignificant to children, the state continues to erroneously proclaim, ‘The grave threat to public health posed by the highly contagious and deadly novel coronavirus is beyond dispute’,” the plaintiffs argue.

No date or timeframe has been set for 38 of the 58 counties most severely impacted by Newsom’s Aug. 28 announcement.

“If the community takes the appropriate public health steps to contain the COVlD-19 virus – including following mandatory orders and guidance, taking responsibility for maintaining physical distancing, wearing face coverings, and avoiding mixing with others, Fresno should see slowing of disease spread,” Acting State Health Officer, Erica Pan, M.D., M.P.H., wrote Immanuel Schools. “Once we see lower levels of disease transmission in Fresno, in-person instruction with safety precautions, along with additional business reopenings, can return to Fresno County within public health guidance and directives.”