Preview
22CV402882
Santa Clara — Civil
M. Bui
Tracy L. Henderson, Esq Electronically Filed
by Superior Court of CA.
Law Offices of Tracy L. Henderson, Esq 4
P.O. Box 221562 County of Santa Clara,
on 8/31/2022 9:34 PM
Tower deena com Reviewed By: M. Bui
. Case #22CV402882
Attorneys for Plaintiffs Envelope: 9861260
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
UNLIMITED CIVIL CASE
22CV402882
F.M, a minor by ERIC MAGNUSON his Case No.!
parent and guardian, E.M., a minor by
RIC MAGNUSON his parent and
guardian, DECLARATION OF TRACY L.
)
)
)
}
Plaintiff, ) HENDERSON IN SUPPORT OF
) COMPLAINT AND EX PARTE
We } APPLICATION FOR TEMPORARY
ALUM ROCK UNION DISTRICT, a } RESTRAINING ORDER AND ORDER
California school district, HILARIA BAUER, ) TO SHOW CAUSE RE PRELIMINARY
)
)
)
)
in her official capacity as superintendent, INJUNCTION
MARIA GUTIERREZ in her official capacity
as principal of Adelante Academy, and Does 1 Date: Friday September 2, 2022
through 50, inclusive, Tae: 8:15 ain a
Defendant. Location:
Judge: TBD
Date Action Filed: August 31, 2022
SUPPORTING DECLARATION OF TRACY L. HENDERSON, ESQ
I, Tracy L. Henderson, Esq, declare,
1. Iam a licensed California attorney and counsel for plaintiffs. I make this declaration in|
support of plaintiff's complaint for a preliminary and permanent injunction and application for a
temporary restraining order and order to show cause re preliminary injunction.
2: I was retained by Plaintiffs on August 29, 2022 in this matter.
3) I drafted and sent a Cease and Desist letter to the principal of Adelante Academy
Maria Gutierrez, and superintendent of Alum Rock Union School District Hilaria Bauer on August
Smee
DECLARATION OF TRACY L. HENDERSON, ESQ IN SUPPORT OF COMPLAINT AND EX PARTE
APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTION29, 2022. The letter was sent to the Defendants and the school board intending to educate them on the|
legal authority a school district has in relation to the issue of compulsory masking of children against
parental wishes. I received no phone call or email from the district or principal in response on that
date. See Cease and Desist attached hereto as Exhibit “1” and made a part by this reference herein.
4. On August 30, 2022 I am informed and believe that my client took his children, the
plaintiffs, to school and they were again refused in person instruction. He received an email from
principal Gutierrez to which I responded and asked to have the school district’s attorney contact me. |
received no email or phone call from anyone from the district or counsel on this date.
a On August 31, 2022 at approx. 8:50 and 8:52 a.m. I called Alum Rock School District
and asked to speak to the superintendent. I was sent to the secretary for the superintendent. The
superintendent would not take my call. | left my name and cell phone and asked for the
superintendent or district’s counsel to contact me. I then called back and requested contact
information for legal counsel from the main secretary. I left my information again.
6. On or about noon on August 31, 2022, I received a letter from counsel for the district,
Rogelio M. Ruiz, which stated that the school district has the authority to force children to mask
against their parent’s wishes based on the fact that California is still in a “state of emergency” and
because the Governor unveiled the SMARTER PLAN which “recognizes that public schools need to
prepare for the eventual change to universal school masking.” The letter also acknowledges that state
and local agencies recommend masking but provided no legal authority for a School District to
mandate masking against parental wishes. See response to Cease and Desist attached hereto as
Exhibit “2” and made a part by this reference herein.
Ts The letter from Mr. Ruiz also claimed falsely that my clients “have chosen to remove
their students from the school site.” Further, the letter threatened my client’s inter-district transfer.
8. On August 31, 2022, I emailed counsel for Alum Rock Union School District and
informed him that my clients take the position that they have the right to in person instruction without}
being compelled to wear a mask. I informed him that I would be seeking a restraining order and
- 8.
DECLARATION OF TRACY L. HENDERSON, ESQ IN SUPPORT OF COMPLAINT AND EX PARTE
APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTIONinjunctive relief. | received an email back asking on what basis would the relief be sought. In
response, I emailed him the cease and desist letter that provides the same law provided herein in the
complaint.
9. I am involved in another lawsuit against the California Department of Public Health
regarding the K-12 guidance issued by CDPH. Department of Justice counsel has conceded in
pleadings filed before the Court in Santa Monica Courthouse that the K-12 guidance did not go
through the Administrative Procedures Act rulemaking process required under the government code
and is and was always only a recommendation schools can disregard.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Dated: August 31, 2022
Tracy L. Henderson, Esq.
Attorney for Plaintiffs
= Bn
DECLARATION OF TRACY L. HENDERSON, ESQ IN SUPPORT OF COMPLAINT AND EX PARTE
APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTIONEXHIBIT 1TRACY L. HENDERSON
ATTORNEY Ar Law
P.O. Box 221562
Carmel CA 93923
uhlaw@protonmail.com
831.917.1583
August 29, 2022
Via Email and U.S. Mail
Maria Gutierrez
Principal
Adelante Academy
Hilaria Bauer
Superintendent
Alum Rock Union School District
2930 Gay Ave
San Jose. CA 95127
Re: Cease and Desist Illegal Enforcement of Emergency Use Authorized Masks
Dear Ms. Gutierrez and Ms. Bauer.
The undersigned counsel represents Mr. and Mrs. QP who have two scholars in
Adelante Academy in Alum Rock Union School District (*ARUSD”). My clients inform me that
their 4" and 6® grade sons have been subjected to harassment and discrimination, and are now
being refused any education at all, at the hand of district employees like yourself and others
under your supervision such as Elizabeth Guzman. This purports to be due to ARUSD’s forced
application of the California Department of Health’s (“CDPH”) non-binding! guidance in
relation to masking that is not even being enforced in Santa Clara county or across the state any
longer, and under your mistaken belief that it is the responsibility of young scholars to make
teachers feel “safe.” The purpose of this letter is to respectfully demand that ARUSD
recognize the legal authority it actually has and immediately cease all illegal conduct in
relation to Mr. and Mrs. QM "s children. | trust you will find this information to be a
helpful pathway back to parent choice in terms of COVID. I, of course, write to avoid litigation.
More specifically, Mr. and Mrs. Q@igmmggs sons have been deprived of their right
to in person instruction for five days for no reason by Ms. Guiterrez and Ms, Guzman
at your direction Ms. Bauer. ARUSD’s only priority is to act in the best interest of children
and create learning environments where children thrive. My client's 4" and 6" graders in
} California Association of Health Plans v Watanabe et al, Case No. 20STCP03773. It is well-settled in
administrative law that while the “issuance” of agency guidance can be APA-exempt, no guidance may be
“enforced” in a binding capacity. (R. A. Anthony. “Interpretive Rules, Policy Statements, Guidance’s, Manuals, and
the Like— Should Federal Agencies Use Them to Bind the Public?”, 41 Duke L_J. 1311, 1312, (1992) ("the
answer...is no”); California Law Revision Commission, “Advisory Interpretations”, 28 Cal. L. Revision Comm'n
Reports 657, 669 (1998) (guidance has “no legal effect”, “cannot prescribe a penalty [or] obligation” and cannot “in
any way bind or compel”).Adelante Academy were instead sent home several days in a row visibly emotionally upset,
frustrated and disappointed. Previously very excited to attend a new year at school, the
children now dread even going to school. Despite repeated conversations with you both, the
illegal conduct in relation to the masks that their parents decline to approve did not stop.
Instead, Ms. Guiterrez has now given these two young boys an ultimatum — wear a mask,
enroll in independent study that does not provide Spanish immersion under duress, or
wear a humiliating face shield. None of these options are within ARUSD’s legal rights to
mandate.
This treatment of Mr. and Mrs.@jgjimamgps children is not only in violation of clear
California law but it is tragic especially considering there is and never has been any legal basis
for ARUSD to force a child to wear a mask against their parent’s wishes. First, school in
California is compulsory per Ed Code §48200 and in person instruction free from discrimination
and harassment is a fundamental right in California. California Constitution AIX: SEC. 5; Ed
Code §201. The only authority provided to schools for removing children from in person
learning in the law is pursuant to Ed code §48900 which requires facts in support of a clear and
present danger. This requires facts to support conduct such as bullying, vulgarity. drugs or guns.
And even in those situations, an intermediary step is required prior to excluding a child from
school. Finally, independent study by statute is voluntary and cannot be forced. Thus, the only
authority a school district has when it comes to health issues is to send sick children home.
Allow me to explain.
It is important for you to first understand that CDPH K-12 guidance where this masking
of children stemmed in the first place is, and always has been, a non-binding recommendation
schools are free to disregard because it never went through the Administrative Procedures Act
(“APA”) rule making process. Gov. Code § 11340.5(a). California law vests state agency and
county officials with authority to resolve certain issues including the issuance of binding public
health regulations. However, such official orders may only be enforced in a mandatory capacity
by anyone if state officials comply with certain legal requirements of statutory due process.
Relevant to the situation here in the APA, or the government code, where the California
Legislature has set forth clear statutory requirements for such “guidance™ to be implemented
“with the force of law” whether a state of emergency exists or not. In particular, the language of
the APA statutes provide that no state agency, in this situation CDOG “shall issue, utilize,
enforce, or attempt to enforce” any “guideline”, “instruction”, or other rule subject to the APA,
unless it “has been adopted as a regulation and filed with the Secretary of State pursuant to [the
APA". Cal. Gov. Code § 11340,5(a). CDPH counsel from the Department of Justice has
conceded to me personally it did not put the K-12 guidance through the rule making process and
you can see yourself from the language it is only a mere recommendation. As CDPH and other
officials have followed none of the required rulemaking or due process procedures related to the
CDPH guidance, and as a result any attempted enforcement of the challenged guidance as a
mandate is void as a matter of law.
Likewise. the Santa Clara County Department of Health, which currently has no guidance
on this issue, also does not provide any school with the legal basis to force emergency use
authorized masking on children against parental wishes either. It is very important that youunderstand that health officers have police power to address public health issues or enforce
health orders by statute — school districts do not. Enforcing health orders when they exist is not a
school district’s job. Notably. any police power given to a health officer is also strictly limited by
statute, For example, the Health and Safety Code §120140 only authorizes health officers to
“take measures that are necessary” to ...prevent (the] spread of communicable diseases” based
on actual facts of affliction. Plainly, even if a health officer was called to the school for the issue
of a healthy child refusing to wear a mask, they likewise would have no authority to take any
action when are no facts of affliction. A school district certainly has no greater authority in
relation to public health issues and cannot do more than the health officer hy /aw. If a health
officer tried to enforce a mask recommendation on a healthy child in this scenario, and this
conduct was challenged in court, they would have to prove facts supporting an actually afflicted
individual or their orders would be found to have exceeded their statutorily given authority. They
would then be held to task as to why it is necessary to mask a healthy child who, as a group.
rarely even get COVID-19, rarely spreads COVID-19, and has a 99.97% recovery rate if they
contract it especially since there is conclusive evidence that masks are ineffective*. In sum it is
legally verifiable that school districts do not have the same authority a health officer has such
that ARUSD can legally become the enforcement arm of a state or local health agency.
In contrast, and important to note, the authority of a school to deal with health issues is
very different. Education Code §35160 states “the governing board of any school district may
initiate and carry on any program, activity, or may otherwise act in any manner which is not in
conflict with or inconsistent with, or preempted by. any law and which is not in conflict with the
purposes for which school districts are established” Educators are allowed to exercise the
amount of control over child a parent would be privileged to “but which in no event shall exceed
the amount of physical control reasonably necessary to ... to maintain proper and appropriate
conditions conducive to learning.” Cal Ed Code § 44807. Restraint and seclusion of children in
school who have a fundamental right to be there should only be used as a safety measure of last
resort and should never be used as punishment or discipline or for staff convenience. Ed. Code
§49005(c). Schools are not allowed to “use a physical restraint technique that obstructs a pupil's
respiratory airway” Cal Ed Codes §§48213. It is even more critical that you understand that
prescribing. or even promoting. medication or medical products such as experimental masking is
not something that a school district, a school board. or teachers cannot properly do as it violates
the Business and Professions code §2052 for practicing medicine without a license*. Thus.
boiling down the issue to its essence. the only authority schools do have when it comes to
infectious diseases, where there is proof that a child is actually suffering from an infectious
disease, is to simply send them home until they are better. Ed code §49451. As outlined in more
detail above, Adelante Academy at the direction of ARUSD clearly exceeded that authority
because they have sent home two children for five days for no legally supported reason.
? As to the necessity requirement, under the health and safety code, health officers can only issue health orders that
are necessary. CDPH derives its authority to “take measures” from Health and Safety Code, section 120140 only
if there is a necessity and only if they actually work.
> https://www. lifesitenews.com/news/47-studies-confirm-inefectiveness-of-masks-for-covid-and-32-more-confirm-
their-negative-health-effects/
* [tis important to note that this particular statute has serious potential criminal consequences if pursued by the
district attorney in your county.All of this means for ARUSD and alll of its schools, no educator can enforce the K12
guidance as if it were a mandate. Tragically, instead of creating a learning environment where
scholars thrive, educators like Ms. Gutierrez took it upon themselves to act in the role of a health
officers to “police” students in regards to mask wearing. This conduct, all of it, at Adelante
Academy has resulted in learning loss and mental and emotional trauma to my client's children.
Thus, it is truly important for ARUSD to consider the true legal ramifications of
mandating a non-binding government recommendation in a punitive, discriminatory and
harassing manner. This conduct simply needs to stop.
Adelante Academy's forced implementation of non-binding K-12 guidance. that is oddly
still ongoing even after the majority of the rest of the state has stopped doing so, is punitive in
that the conduct of the employees implementing them is harassing and discriminatory against
children and could subject the district to civil penalties, injunctions or restraining orders.
Education code §§§200, 201; Civil Code §52.. As one example. section 52 of the civil code
provides for a private right of action against any person acting under the color of law who
interferes in any way with the exercise of legal rights. whether statutory or constitutional, and the
statutory penalties include monetary fines up to a maximum of three times the damages and a
potential $25,000 civil penalty for each incident against each person who denies. aids or incites a
denial of the right. Many statutes in this context provide for an award of reasonable attorney's
fees to be determined by a court. Most notably, the breaking of these acrual laws could also
subject credentialed employees like yourself and Ms. Gutierrez to discipline per Ed. Code
§44421.°
I trust this information provides a clear and appropriate pathway for ARUSD back toa
learning environment where my client's children can thrive instead of suffer. Because Adelante
Academy and ARUSD have now been put on formal notice. even one more day of continued
forced implementation of the non-binding recommended guidance will constitute intentional
disregard of the laws every educator knows it must follow rendering this district civilly,
potentially criminally liable, and put your teaching credentials at risk. Please let me be very
clear: if this notice is disregarded, | have been instructed to immediately seek the appropriate
level of court intervention.
Please do not hesitate to contact me with any questions.
Sincerely.
Tracy L. Henderson, Esq
Ce: Clients
ARUSD Board of Trustees
* My clients are drafting the credential complaints as we speak and will be submitted in draft form prior to
submission to the CTC in an effort to avoid the necessity of submission.EXHIBIT 2R e h Oo n Attorneys at Law
830 The Alameda
8 b San José, California 95126
Roberts t 408 494 0900 #408 4940909
www.rehonroberts.com
direct 408-387-5239
rruiz@rehonroberts.com
August 31, 2022
VIA U.S. MAIL AND EMAIL
Tracy L. Henderson, Esq.
Attorney at Law
P. O. Box 221562
Carmel, CA 93923
tIhlaw@protonmail.com
RE: Alum Rock Union Elementary School District
Dear Ms. Henderson:
This firm represents the Alum Rock Union Elementary School District (the “District”). The
District has asked us to review and respond to your August 29 cease and desist letter.
a The District has not refused to allow your clients’ children into their classrooms. The
District and its staff have informed your clients of the District's current mask requirement. Your
clients have then chosen to leave the school with their children instead of complying with the in-
classroom mask requirements.
The District serves some of the most economically challenged neighborhoods in Santa
Clara County. Many District families live in multi-generational housing and/or work in sectors
with high rates of exposure to, and transmission of, the Covid-19 virus. Public health data shows
that the Covid-19 virus has had a disproportionate impact on the District community including,
especially, the District's Latino community. According to data and information published by the
Santa Clara County Department of Public Health, the community served by the District has some
of the highest Covid-19 case rates in the county. The District has suffered higher-than-normal
absenteeism among students and staff as a result of the pandemic and the high local case rates.
This has exacerbated the staffing issues caused by the local shortage of teachers and substitute-
teachers. The current in-classroom mask requirement in District schools was implemented after
consideration of local public health Covid-19 rates and other relevant factors, and in the interest
of preserving a safe learning environment and workplace for our students and staff and
community. The District has been, and will continue to, monitor local conditions. The District
believes, however, that the current mask policy is fully compliant with state law, creates andRehon
"Roberts
Tracy L. Henderson, Esq.
August 31, 2022
Page 2
maintains a safe learning and work environment under current local Covid-19 conditions, and
maximizes the ability of the District maintain in-person instruction at its schools.
As you know, California remains under a declared state of emergency for the Covid-19
pandemic, and various executive orders issued by the Governor pursuant to the Emergency
Services Act remain effective. The Governor unveiled California's SMARTER plan earlier this
year, a key goal of which includes the state’s ongoing effort to “keep schools open and children
safely in classrooms for in-person instruction.”. The SMARTER plan recognizes that “[w]ith
masking, there may be conditions that warrant temporary, targeted and risk-based masking
requirements. These can be loosened once conditions improve.” With respect to a K-12
environment, the SMARTER plan provides that “[uJniversal indoor masking has been the
cornerstone of the state and national strategy to keep schools open. The goal of such efforts
remains to preserve the sanctity and safety of in-person schooling.”
School districts have broad authority to enact safety measures like a mask requirement
under California law and in response to a declared public health state of emergency and for the
safety of students and staff, and based on local factors and considerations. The District's duty
to uphold the constitutional rights of its students to “attend campuses which are safe, secure,
and peaceful” (Cal. Const. Article 1, section 28(f)(1)) is well established. “Teaching and learning
cannot take place without the physical and mental well-being of the students” and the “right of
all students to a school environment fit for learning cannot be questioned.” (/n re William G.
(1985) 40 Cal.3d 550, 563.) A special relationship exists “between a school district and its
students so as to impose an affirmative duty on the district to take all reasonable steps to protect
its students.” (Rodriguez v. Inglewood Unified School District (1986) 186 Cal.App.3d 707, 715;
Walsh v. Tehachapi Unified School District (2014) 997 F.Supp.2d 1071, 1086; see also Ed.
Code, § 35160 (codifying judicial deference to decisions of school districts made based on local
needs).)
The SMARTER plan also recognizes that public schools need to “[p]repare for the
eventual change to universal school masking...” Recognizing that localities may need to
implement ifferen' measures, the latest CDPH K-12 Guidance
(https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/K-12-Guidance-2022-23-
School-Year.aspx) provides as a “recommended action” that, “Unless otherwise directed by local
health departments or local educational agencies, students and staff should follow CDPH
masking guidance for the general public, as well as masking guidance for specific situations
referenced below (e.g., when having symptoms, being infected, or exposed).” The latest CDPHRehon
"Roberts |
Tracy L. Henderson, Esq.
August 31, 2022
Page 3
K-12 Guidance recognizes and affirms the authority of local agencies to enact additional Covid-
19 mitigation measures as warranted by local conditions (“California affirms the authority of
local health departments and local educational agencies to maintain or establish
additional guidance, including required actions, for K-12 school settings in their
respective jurisdictions. When making a determination of whether additional measures are
warranted to mitigate in-school transmission of COVID-19, CDPH recommends local health and
education officials confer and review this guidance, relevant local considerations, and CDC
guidance.”) (Emphasis added.)
The CDPH provided additional clarity on its K-12 Guidance on masking in its March 7,
2022 letter titled “Local considerations for maintaining or establishing universal indoor msking
requirements in K-12 schools.” (See March 7 Letter,
https:/Awww.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Local-Considerations-K-12-
Universal-Masking-Requirements.aspx.) The March 7 Letter provides that while the statewide
mandate was ending, “California affirms the authority of local health departments and local
educational agencies to maintain or establish masking requirements for K-12 school
settings in their respective jurisdictions.”
Likewise (and contrary to your assertion that no local guidance exists), when the Health
Officer of the County of Santa Clara rescinded the indoor face covering mandate on February
28, 2022, she recommended that all persons continue wearing facial masks indoors and further
recommended that “all businesses and governmental entities likewise continue to require
use of face coverings indoors.”
The CDPH Guidance clearly authorizes the District to enact measures beyond the mere
recommendations as needed to address local concerns. Your contention that “no educator can
enforce the K12 guidance as if it were a mandate” is plainly contradicted by the CDPH and Santa
Clara County Health Officer, and is incorrect.
As discussed above, the District has determined that, among other things, masks are
necessary to meet the District's safety needs, and that the District is at risk of school closures
and/or increased absenteeism in the absence of a mask mandate. Community input has been
almost uniformly positive. The District's current mask requirement is within the discretion
afforded to it by the foregoing authorities.
Your letter goes on to allege a wide range of illegal conduct by the District which is not
supported by the authorities cited therein. In fact, the San Diego County Superior Court rejectedRehon
"Roberts
Tracy L. Henderson, Esq.
August 31, 2022
Page 4
most of your arguments in its November 12, 2021, Order in the matter of Let Them Breathe vs.
Newsom, et al. In particular, the Superior Court affirmed a school district's ability to exclude
students from classrooms based on the students’ refusal to comply with public health and safety
measures, and rejected the students’ contention that the school had violated their “fundamental
right to an education.”
Here, your clients’ children are not being deprived a right to attend school. As noted
above, your clients have chosen to remove their students from the school site. The District has
established independent study for students not wishing to comply with the mask requirement,
which the Superior Court in Let Them Breathe also affirmed as lawful. Your other arguments,
such as claiming that the District has violated the APA, are likewise rejected in the Let Them
| wh Breathe Order. Moreover, | understand that your cli ’ children attend the District school
M under an inter-district transfer agreement, i.e., the District is not their school district of residence
“(they live in the attendance boundaries of another schoot district). As noted by the California
Department of Education, “California’s educational system relies on local control for the
management of school districts on the theory that those closest to the problems and needs
of each individual district are the best able to make appropriate decisions on behalf of
the district.” (Emphasis added.) Your clients are free, and remain free, to re-enroll their children
in the schools of the schoo! district in which they reside.
Sincerely,
REHON & ROBERTS,
A Professional Corporation
eer’,
Rogelio M. Ruiz
Preview
22CV402882 Santa Clara — Civil M. Bui Tracy L. Henderson, Esq Electronically Filed by Superior Court of CA. Law Offices of Tracy L. Henderson, Esq 4 P.O. Box 221562 County of Santa Clara, on 8/31/2022 9:34 PM Tower deena com Reviewed By: M. Bui . Case #22CV402882 Attorneys for Plaintiffs Envelope: 9861260 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED CIVIL CASE 22CV402882 F.M, a minor by ERIC MAGNUSON his Case No.! parent and guardian, E.M., a minor by RIC MAGNUSON his parent and guardian, DECLARATION OF TRACY L. ) ) ) } Plaintiff, ) HENDERSON IN SUPPORT OF ) COMPLAINT AND EX PARTE We } APPLICATION FOR TEMPORARY ALUM ROCK UNION DISTRICT, a } RESTRAINING ORDER AND ORDER California school district, HILARIA BAUER, ) TO SHOW CAUSE RE PRELIMINARY ) ) ) ) in her official capacity as superintendent, INJUNCTION MARIA GUTIERREZ in her official capacity as principal of Adelante Academy, and Does 1 Date: Friday September 2, 2022 through 50, inclusive, Tae: 8:15 ain a Defendant. Location: Judge: TBD Date Action Filed: August 31, 2022 SUPPORTING DECLARATION OF TRACY L. HENDERSON, ESQ I, Tracy L. Henderson, Esq, declare, 1. Iam a licensed California attorney and counsel for plaintiffs. I make this declaration in| support of plaintiff's complaint for a preliminary and permanent injunction and application for a temporary restraining order and order to show cause re preliminary injunction. 2: I was retained by Plaintiffs on August 29, 2022 in this matter. 3) I drafted and sent a Cease and Desist letter to the principal of Adelante Academy Maria Gutierrez, and superintendent of Alum Rock Union School District Hilaria Bauer on August Smee DECLARATION OF TRACY L. HENDERSON, ESQ IN SUPPORT OF COMPLAINT AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION29, 2022. The letter was sent to the Defendants and the school board intending to educate them on the| legal authority a school district has in relation to the issue of compulsory masking of children against parental wishes. I received no phone call or email from the district or principal in response on that date. See Cease and Desist attached hereto as Exhibit “1” and made a part by this reference herein. 4. On August 30, 2022 I am informed and believe that my client took his children, the plaintiffs, to school and they were again refused in person instruction. He received an email from principal Gutierrez to which I responded and asked to have the school district’s attorney contact me. | received no email or phone call from anyone from the district or counsel on this date. a On August 31, 2022 at approx. 8:50 and 8:52 a.m. I called Alum Rock School District and asked to speak to the superintendent. I was sent to the secretary for the superintendent. The superintendent would not take my call. | left my name and cell phone and asked for the superintendent or district’s counsel to contact me. I then called back and requested contact information for legal counsel from the main secretary. I left my information again. 6. On or about noon on August 31, 2022, I received a letter from counsel for the district, Rogelio M. Ruiz, which stated that the school district has the authority to force children to mask against their parent’s wishes based on the fact that California is still in a “state of emergency” and because the Governor unveiled the SMARTER PLAN which “recognizes that public schools need to prepare for the eventual change to universal school masking.” The letter also acknowledges that state and local agencies recommend masking but provided no legal authority for a School District to mandate masking against parental wishes. See response to Cease and Desist attached hereto as Exhibit “2” and made a part by this reference herein. Ts The letter from Mr. Ruiz also claimed falsely that my clients “have chosen to remove their students from the school site.” Further, the letter threatened my client’s inter-district transfer. 8. On August 31, 2022, I emailed counsel for Alum Rock Union School District and informed him that my clients take the position that they have the right to in person instruction without} being compelled to wear a mask. I informed him that I would be seeking a restraining order and - 8. DECLARATION OF TRACY L. HENDERSON, ESQ IN SUPPORT OF COMPLAINT AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTIONinjunctive relief. | received an email back asking on what basis would the relief be sought. In response, I emailed him the cease and desist letter that provides the same law provided herein in the complaint. 9. I am involved in another lawsuit against the California Department of Public Health regarding the K-12 guidance issued by CDPH. Department of Justice counsel has conceded in pleadings filed before the Court in Santa Monica Courthouse that the K-12 guidance did not go through the Administrative Procedures Act rulemaking process required under the government code and is and was always only a recommendation schools can disregard. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: August 31, 2022 Tracy L. Henderson, Esq. Attorney for Plaintiffs = Bn DECLARATION OF TRACY L. HENDERSON, ESQ IN SUPPORT OF COMPLAINT AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTIONEXHIBIT 1TRACY L. HENDERSON ATTORNEY Ar Law P.O. Box 221562 Carmel CA 93923 uhlaw@protonmail.com 831.917.1583 August 29, 2022 Via Email and U.S. Mail Maria Gutierrez Principal Adelante Academy Hilaria Bauer Superintendent Alum Rock Union School District 2930 Gay Ave San Jose. CA 95127 Re: Cease and Desist Illegal Enforcement of Emergency Use Authorized Masks Dear Ms. Gutierrez and Ms. Bauer. The undersigned counsel represents Mr. and Mrs. QP who have two scholars in Adelante Academy in Alum Rock Union School District (*ARUSD”). My clients inform me that their 4" and 6® grade sons have been subjected to harassment and discrimination, and are now being refused any education at all, at the hand of district employees like yourself and others under your supervision such as Elizabeth Guzman. This purports to be due to ARUSD’s forced application of the California Department of Health’s (“CDPH”) non-binding! guidance in relation to masking that is not even being enforced in Santa Clara county or across the state any longer, and under your mistaken belief that it is the responsibility of young scholars to make teachers feel “safe.” The purpose of this letter is to respectfully demand that ARUSD recognize the legal authority it actually has and immediately cease all illegal conduct in relation to Mr. and Mrs. QM "s children. | trust you will find this information to be a helpful pathway back to parent choice in terms of COVID. I, of course, write to avoid litigation. More specifically, Mr. and Mrs. Q@igmmggs sons have been deprived of their right to in person instruction for five days for no reason by Ms. Guiterrez and Ms, Guzman at your direction Ms. Bauer. ARUSD’s only priority is to act in the best interest of children and create learning environments where children thrive. My client's 4" and 6" graders in } California Association of Health Plans v Watanabe et al, Case No. 20STCP03773. It is well-settled in administrative law that while the “issuance” of agency guidance can be APA-exempt, no guidance may be “enforced” in a binding capacity. (R. A. Anthony. “Interpretive Rules, Policy Statements, Guidance’s, Manuals, and the Like— Should Federal Agencies Use Them to Bind the Public?”, 41 Duke L_J. 1311, 1312, (1992) ("the answer...is no”); California Law Revision Commission, “Advisory Interpretations”, 28 Cal. L. Revision Comm'n Reports 657, 669 (1998) (guidance has “no legal effect”, “cannot prescribe a penalty [or] obligation” and cannot “in any way bind or compel”).Adelante Academy were instead sent home several days in a row visibly emotionally upset, frustrated and disappointed. Previously very excited to attend a new year at school, the children now dread even going to school. Despite repeated conversations with you both, the illegal conduct in relation to the masks that their parents decline to approve did not stop. Instead, Ms. Guiterrez has now given these two young boys an ultimatum — wear a mask, enroll in independent study that does not provide Spanish immersion under duress, or wear a humiliating face shield. None of these options are within ARUSD’s legal rights to mandate. This treatment of Mr. and Mrs.@jgjimamgps children is not only in violation of clear California law but it is tragic especially considering there is and never has been any legal basis for ARUSD to force a child to wear a mask against their parent’s wishes. First, school in California is compulsory per Ed Code §48200 and in person instruction free from discrimination and harassment is a fundamental right in California. California Constitution AIX: SEC. 5; Ed Code §201. The only authority provided to schools for removing children from in person learning in the law is pursuant to Ed code §48900 which requires facts in support of a clear and present danger. This requires facts to support conduct such as bullying, vulgarity. drugs or guns. And even in those situations, an intermediary step is required prior to excluding a child from school. Finally, independent study by statute is voluntary and cannot be forced. Thus, the only authority a school district has when it comes to health issues is to send sick children home. Allow me to explain. It is important for you to first understand that CDPH K-12 guidance where this masking of children stemmed in the first place is, and always has been, a non-binding recommendation schools are free to disregard because it never went through the Administrative Procedures Act (“APA”) rule making process. Gov. Code § 11340.5(a). California law vests state agency and county officials with authority to resolve certain issues including the issuance of binding public health regulations. However, such official orders may only be enforced in a mandatory capacity by anyone if state officials comply with certain legal requirements of statutory due process. Relevant to the situation here in the APA, or the government code, where the California Legislature has set forth clear statutory requirements for such “guidance™ to be implemented “with the force of law” whether a state of emergency exists or not. In particular, the language of the APA statutes provide that no state agency, in this situation CDOG “shall issue, utilize, enforce, or attempt to enforce” any “guideline”, “instruction”, or other rule subject to the APA, unless it “has been adopted as a regulation and filed with the Secretary of State pursuant to [the APA". Cal. Gov. Code § 11340,5(a). CDPH counsel from the Department of Justice has conceded to me personally it did not put the K-12 guidance through the rule making process and you can see yourself from the language it is only a mere recommendation. As CDPH and other officials have followed none of the required rulemaking or due process procedures related to the CDPH guidance, and as a result any attempted enforcement of the challenged guidance as a mandate is void as a matter of law. Likewise. the Santa Clara County Department of Health, which currently has no guidance on this issue, also does not provide any school with the legal basis to force emergency use authorized masking on children against parental wishes either. It is very important that youunderstand that health officers have police power to address public health issues or enforce health orders by statute — school districts do not. Enforcing health orders when they exist is not a school district’s job. Notably. any police power given to a health officer is also strictly limited by statute, For example, the Health and Safety Code §120140 only authorizes health officers to “take measures that are necessary” to ...prevent (the] spread of communicable diseases” based on actual facts of affliction. Plainly, even if a health officer was called to the school for the issue of a healthy child refusing to wear a mask, they likewise would have no authority to take any action when are no facts of affliction. A school district certainly has no greater authority in relation to public health issues and cannot do more than the health officer hy /aw. If a health officer tried to enforce a mask recommendation on a healthy child in this scenario, and this conduct was challenged in court, they would have to prove facts supporting an actually afflicted individual or their orders would be found to have exceeded their statutorily given authority. They would then be held to task as to why it is necessary to mask a healthy child who, as a group. rarely even get COVID-19, rarely spreads COVID-19, and has a 99.97% recovery rate if they contract it especially since there is conclusive evidence that masks are ineffective*. In sum it is legally verifiable that school districts do not have the same authority a health officer has such that ARUSD can legally become the enforcement arm of a state or local health agency. In contrast, and important to note, the authority of a school to deal with health issues is very different. Education Code §35160 states “the governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by. any law and which is not in conflict with the purposes for which school districts are established” Educators are allowed to exercise the amount of control over child a parent would be privileged to “but which in no event shall exceed the amount of physical control reasonably necessary to ... to maintain proper and appropriate conditions conducive to learning.” Cal Ed Code § 44807. Restraint and seclusion of children in school who have a fundamental right to be there should only be used as a safety measure of last resort and should never be used as punishment or discipline or for staff convenience. Ed. Code §49005(c). Schools are not allowed to “use a physical restraint technique that obstructs a pupil's respiratory airway” Cal Ed Codes §§48213. It is even more critical that you understand that prescribing. or even promoting. medication or medical products such as experimental masking is not something that a school district, a school board. or teachers cannot properly do as it violates the Business and Professions code §2052 for practicing medicine without a license*. Thus. boiling down the issue to its essence. the only authority schools do have when it comes to infectious diseases, where there is proof that a child is actually suffering from an infectious disease, is to simply send them home until they are better. Ed code §49451. As outlined in more detail above, Adelante Academy at the direction of ARUSD clearly exceeded that authority because they have sent home two children for five days for no legally supported reason. ? As to the necessity requirement, under the health and safety code, health officers can only issue health orders that are necessary. CDPH derives its authority to “take measures” from Health and Safety Code, section 120140 only if there is a necessity and only if they actually work. > https://www. lifesitenews.com/news/47-studies-confirm-inefectiveness-of-masks-for-covid-and-32-more-confirm- their-negative-health-effects/ * [tis important to note that this particular statute has serious potential criminal consequences if pursued by the district attorney in your county.All of this means for ARUSD and alll of its schools, no educator can enforce the K12 guidance as if it were a mandate. Tragically, instead of creating a learning environment where scholars thrive, educators like Ms. Gutierrez took it upon themselves to act in the role of a health officers to “police” students in regards to mask wearing. This conduct, all of it, at Adelante Academy has resulted in learning loss and mental and emotional trauma to my client's children. Thus, it is truly important for ARUSD to consider the true legal ramifications of mandating a non-binding government recommendation in a punitive, discriminatory and harassing manner. This conduct simply needs to stop. Adelante Academy's forced implementation of non-binding K-12 guidance. that is oddly still ongoing even after the majority of the rest of the state has stopped doing so, is punitive in that the conduct of the employees implementing them is harassing and discriminatory against children and could subject the district to civil penalties, injunctions or restraining orders. Education code §§§200, 201; Civil Code §52.. As one example. section 52 of the civil code provides for a private right of action against any person acting under the color of law who interferes in any way with the exercise of legal rights. whether statutory or constitutional, and the statutory penalties include monetary fines up to a maximum of three times the damages and a potential $25,000 civil penalty for each incident against each person who denies. aids or incites a denial of the right. Many statutes in this context provide for an award of reasonable attorney's fees to be determined by a court. Most notably, the breaking of these acrual laws could also subject credentialed employees like yourself and Ms. Gutierrez to discipline per Ed. Code §44421.° I trust this information provides a clear and appropriate pathway for ARUSD back toa learning environment where my client's children can thrive instead of suffer. Because Adelante Academy and ARUSD have now been put on formal notice. even one more day of continued forced implementation of the non-binding recommended guidance will constitute intentional disregard of the laws every educator knows it must follow rendering this district civilly, potentially criminally liable, and put your teaching credentials at risk. Please let me be very clear: if this notice is disregarded, | have been instructed to immediately seek the appropriate level of court intervention. Please do not hesitate to contact me with any questions. Sincerely. Tracy L. Henderson, Esq Ce: Clients ARUSD Board of Trustees * My clients are drafting the credential complaints as we speak and will be submitted in draft form prior to submission to the CTC in an effort to avoid the necessity of submission.EXHIBIT 2R e h Oo n Attorneys at Law 830 The Alameda 8 b San José, California 95126 Roberts t 408 494 0900 #408 4940909 www.rehonroberts.com direct 408-387-5239 rruiz@rehonroberts.com August 31, 2022 VIA U.S. MAIL AND EMAIL Tracy L. Henderson, Esq. Attorney at Law P. O. Box 221562 Carmel, CA 93923 tIhlaw@protonmail.com RE: Alum Rock Union Elementary School District Dear Ms. Henderson: This firm represents the Alum Rock Union Elementary School District (the “District”). The District has asked us to review and respond to your August 29 cease and desist letter. a The District has not refused to allow your clients’ children into their classrooms. The District and its staff have informed your clients of the District's current mask requirement. Your clients have then chosen to leave the school with their children instead of complying with the in- classroom mask requirements. The District serves some of the most economically challenged neighborhoods in Santa Clara County. Many District families live in multi-generational housing and/or work in sectors with high rates of exposure to, and transmission of, the Covid-19 virus. Public health data shows that the Covid-19 virus has had a disproportionate impact on the District community including, especially, the District's Latino community. According to data and information published by the Santa Clara County Department of Public Health, the community served by the District has some of the highest Covid-19 case rates in the county. The District has suffered higher-than-normal absenteeism among students and staff as a result of the pandemic and the high local case rates. This has exacerbated the staffing issues caused by the local shortage of teachers and substitute- teachers. The current in-classroom mask requirement in District schools was implemented after consideration of local public health Covid-19 rates and other relevant factors, and in the interest of preserving a safe learning environment and workplace for our students and staff and community. The District has been, and will continue to, monitor local conditions. The District believes, however, that the current mask policy is fully compliant with state law, creates andRehon "Roberts Tracy L. Henderson, Esq. August 31, 2022 Page 2 maintains a safe learning and work environment under current local Covid-19 conditions, and maximizes the ability of the District maintain in-person instruction at its schools. As you know, California remains under a declared state of emergency for the Covid-19 pandemic, and various executive orders issued by the Governor pursuant to the Emergency Services Act remain effective. The Governor unveiled California's SMARTER plan earlier this year, a key goal of which includes the state’s ongoing effort to “keep schools open and children safely in classrooms for in-person instruction.”. The SMARTER plan recognizes that “[w]ith masking, there may be conditions that warrant temporary, targeted and risk-based masking requirements. These can be loosened once conditions improve.” With respect to a K-12 environment, the SMARTER plan provides that “[uJniversal indoor masking has been the cornerstone of the state and national strategy to keep schools open. The goal of such efforts remains to preserve the sanctity and safety of in-person schooling.” School districts have broad authority to enact safety measures like a mask requirement under California law and in response to a declared public health state of emergency and for the safety of students and staff, and based on local factors and considerations. The District's duty to uphold the constitutional rights of its students to “attend campuses which are safe, secure, and peaceful” (Cal. Const. Article 1, section 28(f)(1)) is well established. “Teaching and learning cannot take place without the physical and mental well-being of the students” and the “right of all students to a school environment fit for learning cannot be questioned.” (/n re William G. (1985) 40 Cal.3d 550, 563.) A special relationship exists “between a school district and its students so as to impose an affirmative duty on the district to take all reasonable steps to protect its students.” (Rodriguez v. Inglewood Unified School District (1986) 186 Cal.App.3d 707, 715; Walsh v. Tehachapi Unified School District (2014) 997 F.Supp.2d 1071, 1086; see also Ed. Code, § 35160 (codifying judicial deference to decisions of school districts made based on local needs).) The SMARTER plan also recognizes that public schools need to “[p]repare for the eventual change to universal school masking...” Recognizing that localities may need to implement ifferen' measures, the latest CDPH K-12 Guidance (https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/K-12-Guidance-2022-23- School-Year.aspx) provides as a “recommended action” that, “Unless otherwise directed by local health departments or local educational agencies, students and staff should follow CDPH masking guidance for the general public, as well as masking guidance for specific situations referenced below (e.g., when having symptoms, being infected, or exposed).” The latest CDPHRehon "Roberts | Tracy L. Henderson, Esq. August 31, 2022 Page 3 K-12 Guidance recognizes and affirms the authority of local agencies to enact additional Covid- 19 mitigation measures as warranted by local conditions (“California affirms the authority of local health departments and local educational agencies to maintain or establish additional guidance, including required actions, for K-12 school settings in their respective jurisdictions. When making a determination of whether additional measures are warranted to mitigate in-school transmission of COVID-19, CDPH recommends local health and education officials confer and review this guidance, relevant local considerations, and CDC guidance.”) (Emphasis added.) The CDPH provided additional clarity on its K-12 Guidance on masking in its March 7, 2022 letter titled “Local considerations for maintaining or establishing universal indoor msking requirements in K-12 schools.” (See March 7 Letter, https:/Awww.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Local-Considerations-K-12- Universal-Masking-Requirements.aspx.) The March 7 Letter provides that while the statewide mandate was ending, “California affirms the authority of local health departments and local educational agencies to maintain or establish masking requirements for K-12 school settings in their respective jurisdictions.” Likewise (and contrary to your assertion that no local guidance exists), when the Health Officer of the County of Santa Clara rescinded the indoor face covering mandate on February 28, 2022, she recommended that all persons continue wearing facial masks indoors and further recommended that “all businesses and governmental entities likewise continue to require use of face coverings indoors.” The CDPH Guidance clearly authorizes the District to enact measures beyond the mere recommendations as needed to address local concerns. Your contention that “no educator can enforce the K12 guidance as if it were a mandate” is plainly contradicted by the CDPH and Santa Clara County Health Officer, and is incorrect. As discussed above, the District has determined that, among other things, masks are necessary to meet the District's safety needs, and that the District is at risk of school closures and/or increased absenteeism in the absence of a mask mandate. Community input has been almost uniformly positive. The District's current mask requirement is within the discretion afforded to it by the foregoing authorities. Your letter goes on to allege a wide range of illegal conduct by the District which is not supported by the authorities cited therein. In fact, the San Diego County Superior Court rejectedRehon "Roberts Tracy L. Henderson, Esq. August 31, 2022 Page 4 most of your arguments in its November 12, 2021, Order in the matter of Let Them Breathe vs. Newsom, et al. In particular, the Superior Court affirmed a school district's ability to exclude students from classrooms based on the students’ refusal to comply with public health and safety measures, and rejected the students’ contention that the school had violated their “fundamental right to an education.” Here, your clients’ children are not being deprived a right to attend school. As noted above, your clients have chosen to remove their students from the school site. The District has established independent study for students not wishing to comply with the mask requirement, which the Superior Court in Let Them Breathe also affirmed as lawful. Your other arguments, such as claiming that the District has violated the APA, are likewise rejected in the Let Them | wh Breathe Order. Moreover, | understand that your cli ’ children attend the District school M under an inter-district transfer agreement, i.e., the District is not their school district of residence “(they live in the attendance boundaries of another schoot district). As noted by the California Department of Education, “California’s educational system relies on local control for the management of school districts on the theory that those closest to the problems and needs of each individual district are the best able to make appropriate decisions on behalf of the district.” (Emphasis added.) Your clients are free, and remain free, to re-enroll their children in the schools of the schoo! district in which they reside. Sincerely, REHON & ROBERTS, A Professional Corporation eer’, Rogelio M. Ruiz