Back in February of 2022, Managing Editor Jennifer Van Laar covered the sad saga of Kamdin Hernandez, a 9-year-old boy with ADHD who was targeted, forced to sit outdoors, and harassed by the staff and administrators of the Garden Grove Elementary School in Simi Valley, California over his refusal to wear a mask. When Hernandez’s father advocated for his son, a criminal complaint was filed against him for “campus disruption.”
Apparently, this pattern of targeting children has been occurring in other schools across the state. As the cases unfold, these incidents bear the earmarks of First Amendment violations.
In July, RedState did an exclusive on The Gavel Project, an organization taking on California-based lawsuits involving the infringement of student and parental rights. Through the assistance of pro bono attorney Tracy Henderson, the organization is working with Shay and Jessica, parents whose children attend Foothill Ranch Elementary School (FRE). Shay and Jessica have submitted claims against FRE and the Saddleback Valley Unified School District (SVUSD) of Mission Viejo for victimizing their children over non-compliance with the school’s mask mandate.
Shay’s two daughters (ages 9 and 11 at the time), and Jessica’s son (age 10) were segregated and isolated from the student body because of their refusal to wear a mask in the classroom, and they were subjected to unsafe conditions. The parents also allege their children were intimidated, harassed, endangered, and bullied by FRE Principal Deborah Shaver, Assistant Principal Christina Stevenson, various SVUSD administrators, the SVUSD’s Board of Trustees, and the FRE staff.
According to Shay’s claim,
“They were also mistreated by fellow students—who were implicitly encouraged to bully my daughters by the hostile environment created by FRE and SVUSD faculty.”
The Gavel Project Founder and CEO Ryan Heath expanded upon this case and other cases under the organization’s aegis:
Tracy Henderson represents children across California related to The Gavel Project. Tracy represents Shay, Jessica, and their children at SVUSD. The Gavel Project is providing for her compensation, pro bono, as an act of public charity (like the Coronado Case we filed late last week, The Gavel Project exclusively provides pro bono representation and is not for hire).
These cases (and a few similar claims that The Gavel Project is funding), have First Amendment value. They concern the important issue of whether public officials can force individual citizens to “play pretend” by conforming their bodily autonomy to unjustifiable “mandatory guidelines” that obviously infringe upon basic human needs (like access to oxygen).
From Dr. Anthony Fauci “retiring” to verifiable data showing that the harm and side effects from the vaccines were deliberately downplayed and buried, the COVID agenda with two years of lockdowns, forced masking, and demands to be vaccinated or suffer the consequences, continues to fall apart. In August, CNN medical analyst and faithful COVID policy disciple Dr. Leana Wen did a mea culpa on her mask fascism because her own child is now suffering developmentally from the perpetual masking.
I accept the risk that my kids will probably contract covid in school, just as they could contract the flu, RSV & other contagious diseases.
There is a trade-off. Masking has harmed our son’s language development. We do not wish to limiting our kids’ social interactions.
— Leana Wen, M.D. (@DrLeanaWen) August 23, 2022
Cue the tiny violins. Wen is not the only one offering apologies and doing an about-face. Frankly, these “former” zealots should be approached with suspicion and held liable for their complicity in the irrevocable harm perpetrated on America’s children.
These calculated orchestrators and all who did their bidding must be held accountable, which is why The Gavel Project is getting involved in these abuses of parental and student rights. Rights that are enshrined in both the California and United States constitutions.
Pro-bono attorney Tracy Henderson discussed the statutes that govern and support this:
The California Constitution provides that in person instruction in public schools is a fundamental right. California Constitution article AIX § 5. All students are entitled to “equal rights and opportunities” in education (Ed. Code § 200) and to participate fully in the educational process “free from discrimination and harassment.” Ed. Code § 201, subd. (a); To effectuate this policy, which is guaranteed by the federal and state Constitutions, the Legislature requires California’s public schools to take affirmative steps to “combat … forms of bias.” (Ed. Code § 201, subd. (b).) They also must “prevent and respond to acts of bias-related incidents” in an “urgent” manner (§ 201, subd. (d)) Donovan v. Poway Unified School Dist., 167 Cal. App. 4th 567, 606; Civil Code § 51-52 et seq. Attendance at school in California is compulsory according to California law. Cal Ed. Code § 48200.
The only way that a school can expel/suspend/exclude a student is per Education Code § 48900 which requires facts of a “clear and present danger.” This requires facts of things like bullying, guns, drugs, vulgarity, etc.
This does not mean a healthy child.
Neither Shay’s daughters, nor Jessica’s son were sick. They had not tested positive for COVID nor were they putting anyone in danger. They were simply exercising their right to breathe freely.
These incidents outlined in the parents’ claims happened after the January 30 NFC Championship game at SoFi Stadium in Los Angeles.
At the time, California still had a statewide mask mandate in place on indoor events, and SoFi had even stricter rules on vaccination and masking for attendees. Governor Gavin Newsom and Los Angeles Mayor Eric Garcetti attended the game and were copiously photographed gallivanting around SoFi stadium and posing for pictures, maskless. Both elected leaders were called out on their hypocrisy, and they both made equally ridiculous excuses on why they were not violating their own diktats. Lo and behold, a few days later, California health officials announced they were eliminating the statewide mask mandate for indoor venues effective February 16.
In Newsom’s schizophrenic manner, the lifting of this mandate did not apply to California public schools. Newsom said he would “revisit” the school issue after February 16.
Since 2020, certain Orange County elected officials have been part of the resistance against Newsom and his COVID governance by fiat. In August of 2021, the county filed a lawsuit against Newsom over the school mask mandate. Despite the California Supreme Court’s refusal to hear the case, Orange County, along with many other counties in the state, continued their pushback on Newsom’s unconstitutional orders. Most counties had already ditched the indoor mask mandate nonsense long before January 30, 2022. After more of Newsom’s hypocrisy was exposed, waves of protests broke out in schools across the state.
INCREDIBLE: California high school student says she refused to wear a mask to school after seeing photos of Gavin Newsom maskless at the NFL game. She was escorted off campus by security and says she will still not comply. HERO 👑 pic.twitter.com/G0Ndovq6st
— Libs of TikTok (@libsoftiktok) February 3, 2022
Shay said that by mid-February, a portion of the students and staff were walking around the school and attending classes without having masks on their faces, and it appeared to be receiving little to no pushback.
Furthermore, in the preceding months, they observed that forced masking indoors was completely ineffective—as email alerts of Covid infections on campus were provided to the FRE community daily. Even my children could see that SVUSD’s mitigating measures, including indoor mask mandates, didn’t prevent the spread. It was around this time that my daughters decided to breathe freely. They opted not to wear masks while at school, especially since so many of their classmates and FRE staff were already going maskless. They were tired of the confusing and perpetually changing rules that they couldn’t make sense of!
February 9, 2022, was the first day that Shay’s 9- and 11-year-old daughters decided to go to school without their masks. While the older child stood firm, the youngest was essentially manipulated into complying by school principal Deborah Shaver.
Mrs. Shaver spoke to my nine-year-old daughter [redacted] outside of her class and told her that she was too young to make this decision for herself and that her only choice was to put a mask on and go back to class or go home!
So, we can take babies to Drag Queen story hour, and three-year-olds can declare they are another gender and be placed on puberty blockers. But Shay’s 9-year-old was told she was “too young” to make the decision for herself that she didn’t want to wear a mask. Having trouble breathing? You’re too young to know about that!
Make it make sense.
[My daughter], then in third grade, has always instinctively been afraid of Mrs. Shaver. At times, she has described Mrs. Shaver as acting “mean” towards other students. That day, she made [her] feel like she was “in trouble.” Mrs. Shaver and [my daughter’s] teacher, Mrs. Petrone, told her that she would be “missing out” on a bunch of “fun stuff” in class by refusing to mask. This included the “whale project,” which [she] had been looking forward to all year. Upon surmising that they might take an upcoming whale watching field trip away, [my daughter] was coerced into wearing a mask.
At that point, Mrs. Shaver decided to give [my daughter] a hug—without her consent.
So much for three- to six-feet of distance.
Shay explained that not only was this a violation of her 9-year-old’s bodily integrity, but that her youngest still remembers the encounter with Principal Shaver as, “creepy.”
That same day, Shay received a phone call from Principal Shaver outlining the “incident.” According to Shay’s claim, Principal Shaver told Shay that she was in complete support of her daughter’s decision and that,
“moving forward, if [her 9-year-old] chose to not wear a mask that she would support her decision and personally ensure that she and the other students not masking would still receive proper instruction and she would find a way to make it work.”
Shay stated that Principal Shaver informed her that her daughter would be seated at a table right outside of her classroom, along with other students who had also joined in the no-mask protest.
Jessica received a similar phone call from Principal Shaver about her 10-year-old son who was also not complying with the mask mandate. Like Kamdin Hernandez, Jessica’s son had been diagnosed ADHD, so wearing a mask increases his anxiety and concentration levels, and affects his breathing.
Jessica outlined in her claim,
On February 9, 2022, I received a phone call from Mrs. Shaver, the school’s Principal who advised that I was on speaker and there were district personnel on the phone as well. She told me that [my son] was choosing not to wear a mask. She asked if I was aware of his decision. I confirmed and told her that I fully supported his decision. She explained that, moving forward, should [my son] choose not to wear a mask he would not be allowed in the classroom and, instead, would be sitting at the tables in front of Ms. Petko’s class and doing all his school-work from there.
On February 10, when Shay’s daughters and Jessica’s son still chose to come to school without masks, Principal Shaver decided to change the ground rules. According to Shay, Principal Shaver’s demeanor and language had also changed. The principal was no longer offering a cooperative approach, and instructed Shay that her daughter was being “excluded due to health and safety reasons.”
Principal Shaver claimed that Shay’s 9-year-old posed a “danger” to other students and staff and that she was being “excluded” and would be marked with an unexcused absence for the day.
Shay was not okay with this approach, especially the information that her children would be considered truant, even though they were at the school, had completed all their coursework, and were ready for their classes. Shay stated in her claim that Principal Shaver was “harsh and curt,” and refused to answer her questions, only repeating that “she has been excluded.”
Once again, Jessica also received a phone call about her son.
On February 10, 2022, I received a phone call around 1:22pm (school gets out at 2:15) from Mrs. Shaver. She told me that [my son] was being marked with an “unexcused absence” for the day. This confused me, so I pushed back. I told her that he was not absent because he had been at school since 8:15 a.m. to learn. What came out of her mouth next was shocking. She explained that [my son] was being “excluded from the classroom for health and safety reasons.” She further noted that [redacted] had been moved from the tables outside of his classroom and was instead sitting in an enclosed courtyard, which is surrounded by metal bars in such a way as to look like an outdoor “cage” or “jail.”
According to Shay, Principal Shaver did not disclose this detail about the caged enclosure to her, or that the children had been in the enclosure since they arrived that morning. On February 10, Orange County was under an excessive heat and wind advisory, so the children were made to sit outside at a metal table, without any shade, for six hours.
According to weather reports, the high temperature exceeded 90 degrees and the wind gusts reached 40 miles per hour.
Jessica wrote in her claim,
She failed to mention on our phone call that [my son] (along with a few other FRE students) had moved to the courtyard first thing in the morning! I learned about this from [my son], who reported that he “was not allowed to leave the courtyard except to use the bathroom.” Unlike his “compliant peers” he was not given access to recess or lunch. Instead, he sat outside all day in a “cage.” Kids walking by the courtyard were told by the supervisors (acting per the express directions of Mrs. Shaver) not to look at or talk to the kids in the enclosure because they are in “trouble.” She also told the adult supervisor to make sure that they don’t have fun.
Mrs. Shaver told the protesting students that “this was their punishment for not wearing a mask and that their decisions had consequences.”
The outdoor area where the children were enclosed is shown below.
The children chose to continue to protest against having to wear masks, and were relegated to the cage and made to suffer other indignities that will be outlined in the next part of this exclusive. Shay and Jessica lobbied the SVUSD and the school board on their children’s behalf, but received little response and no redress. SVUSD finally conducted an independent investigation, but according to Shay and Jessica, the investigator was hostile. In the final analysis, the SVUSD failed to substantiate the parents’ claims.
To add insult to injury, Shay and Jessica were sent letters from the Orange Country District Attorney’s Office accusing them of neglect because their children had unexcused absences and were considered truant. Other parents whose children were part of this protest also received letters.
The letter required that the parents attend a meeting with the deputy district attorney and discuss why their child was absent from school. The letter also alleged that the parents were ignoring their duties to provide their children with an education, and equated this with failing to provide them with shelter, clothing, and sustenance, along with a threat of possible criminal charges!
In an interview with Jessica, she expressed upset about the aspersions this cast on her role as a parent.
“I mean, I know in my heart that I am a good parent. But exactly what you’re saying, like that’s not how we’re being portrayed.”
Shay also fully expressed her anger over the situation:
“They were the ones that took the education from our children, not us. We took them to school every day. They chose to mark them absent and take instruction from them so, they should be responsible, not us as parents.”
The SVUSD parents, as well as another Los Angeles County case that pro-bono attorney Tracy Henderson has on her plate, are supported by California health statutes, as Henderson explained.
Further schools have no power or duty to enforce health orders even if there was a legal mandate, which there was not. Health officers have police power to issue and enforce orders that are NECESSARY by California statute. Example: Health and Safety Code § 120140.
Even if the school called the health and safety officer to come to campus to deal with a healthy child who won’t mask, the health officer, who has police power, could do nothing. The ONLY authority the school has in these situations is to send a sick kid home. That is it.
Teachers and the principal violated all of these laws under Civil Code § 52, because they were claiming to act under color of authority. They could be subject to civil penalties, damages, and attorneys fees.
Ryan Heath explained that a favorable ruling in these matters could set an important precedent that could further erode unelected bureaucrats’ abilities to impose unconstitutional mandates in the future:
This is especially important right now as public actors (such as former CNN Contributor Leana Wen, MD) walk back their positions on the usefulness of compelled masking relative to harms.
Because The Gavel Project is specifically filing First Amendment claims based on free speech (removing a mask in defiance is expressive conduct protected as speech), favorable outcomes for these lawsuits could result in the end of objectively silly COVID-19 “mandates” for school children.