LOS ANGELES (CN) — A Los Angeles County Superior Court judge tossed a lawsuit against the LA Unified School District over its Covid safety measures, but will allow the plaintiffs to refile their case for a fourth time.
First filed in October by 2021 by Children's Health Defense, a nonprofit founded by Robert Kennedy Jr. — one of the biggest anti-vaccine activists in the country and the son of former Attorney General Robert Kennedy — the suit was initially aimed at LAUSD's impending student vaccine mandate. The district planned to require all students to be vaccinated against Covid before returning to in-person learning; students who declined to be vaccinated would be placed in alternative remote classrooms, known as independent studies.
The policy was never implemented, in part because the same judge, LA County Superior Court Judge Mitchell Beckloff, ruled in a different case that the school board had exceeded its authority when it passed the vaccine mandate, which could only be issued by state health officials. In fact, the state's Department of Health had announced that it would be adding the Covid vaccine to a list of 10 inoculations that students in California are required to get before attending school in person. But it never did and last month, public health officials confirmed that they aren't going to — at least for the foreseeable future.
The suit against the vaccine mandate now moot, Beckloff allowed Children's Health Defense to amend their case for a third time. That version took aim at an entirely different set of measures adopted by LA Unified to slow the spread of Covid — masking, testing and quarantining.
Those measures, too, have been largely relaxed this school year. Indoor masking, for example, is not required by the school district, except in certain cases — for example, a student who has been in close contact with someone who has tested positive for Covid must wear a mask for 10 days. If the student refuses to wear a mask, he or she can be taken out of the classroom and placed in independent study. Those are the types of policies targeted by Children Health Defense's third complaint.
In a hearing Wednesday, Beckloff told the plaintiffs that it wasn't entirely clear which specific policies they object to and what law the policies supposedly violate.
"We all agree there’s no requirement that when a student walks into school the student must have on a mask," Beckloff said. "There is a requirement that if student has had close contact with someone that’s been infected, the student may have to wear a mask. What code does that conflict with?"
Children's Health Defense attorney Jessica Barsotti said it violates the law governing when students can be suspended from school.
Keith Yeomans, outside counsel for LAUSD, argued Covid safety measures cannot be compared to school discipline.
"If we’re talking about simply exclusion from campus, discipline proceedings go on a student’s record," said Yeomans. "That's not the case with quarantining. There’s some confusion about what laws are applicable."
Beckloff also said the plaintiffs probably should be suing LA County and the state of California, since LAUSD is largely mirroring their policies.
"If the school district says it’s required to follow state and county health officers’ mandates about K-12 education, I think that’s a complete defense," Beckloff said. "To the extent that those health orders are invalid, in your view, I think you would have to name the county and the state [in your complaint]."
"I think you’re right," Barsotti said, indicating her client would like the opportunity to refile the complaint for a fourth time. Yeomans objected.
"The petitioners' last amended complaint took the case and dumped it on its head," Yeomans said. "This used to be a challenge to LAUSD's Covid-19 vaccine policy. We’re no longer talking about that. Petitioners are already coloring way outside the lines of the court’s order allowing leave to amend."
Beckloff sustained LAUSD's demurrer but said Children's Health Defense could refile their complaint, and gave them 45 days to do so.
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