On November 12, 2021, San Diego Superior Court Judge Cynthia A. Freeland dismissed a lawsuit brought by two parent groups, Let Them Breathe and Reopen California Schools (“Plaintiffs”), challenging California's K-12 mask mandate.     

The dismissed lawsuit challenged the mask mandate contained in the California Department of Public Health's (“CDPH”) COVID-19 Public Health Guidance for K-12 Schools in California, 2021-22 School Year (originally published July 12, 2021; updated as of October 20, 2021) (“Guidance”).  Per the Guidance, “K-12 students are required to mask indoors, with exemptions per CDPH face mask guidance.  Adults in K-12 school settings are required to mask when sharing indoor spaces with students.”  (Emphasis added.)  The mask mandate applies regardless of vaccination status, and persons with a medical condition, mental health condition, or disability that prevents wearing a mask are among those exempted.  “Persons exempted from wearing a face covering due to a medical condition, must wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it.”  Finally, “schools must develop and implement local protocols to enforce the mask requirements.”  (Emphasis added.)     

Among Plaintiffs' arguments was an assertion that a state of emergency justifying the mask mandate no longer exists.  Further, Plaintiffs disputed the effectiveness of masks in preventing the spread of COVID-19.  In addition, Plaintiffs argued that students are being illegally excluded from in-person learning for refusing to wear a mask.  Judge Freeland rejected these arguments. 

Judge Freeland wrote that the State has a legitimate interest in protecting public health and preventing the spread of COVID-19 by mandating measures such as universal masking:  “[W]hile there is a fundamental right to an education, courts routinely have permitted the exclusion of students who refuse to comply with public health and safety measures designed to prevent the spread of communicable diseases, measures far more invasive than a mask mandate,” such as childhood vaccinations.

Notably, Plaintiffs also challenged the Guidance's COVID-19 testing strategies and quarantine protocols recommendations, asking the Court to consider them mandates and not mere recommendations, as they are identified in the Guidance itself.  Judge Freeland declined Plaintiffs' request that the Court consider all pertinent aspects of the Guidance, even those couched as “recommendations” in the Guidance itself, as mandates.   

Districts should take away the following from Judge Freeland's decision:  The Guidance contains both requirements and recommendations.  The mask mandate is just that, a mandate, a requirement, per the very text of the Guidance.  Indeed, Judge Freeland characterized the Guidance's masking provisions throughout her opinion as “a mask mandate.”  (Emphasis added.)  On the other hand, testing strategies and quarantine protocols are recommendations, again per the very text of the Guidance.

Parker & Covert LLP has extensive experience handling COVID-19 K-12 matters.  Should you have any questions or need assistance regarding the impact of Judge Freeland's decision on your district, please do not hesitate to contact us via email or telephone.

This Parker & Covert LLP post is intended for informational purposes only and should not be relied upon as legal advice.  Legal issues and principles apply differently, sometimes substantially, depending on context and facts.  Review or receipt of this post does not create an attorney-client relationship.