When Winning Feels Like Losing

The leadership of the Placentia-Yorba Linda Unified School District (PYLUSD) is in a rather interesting spot – the district recently prevailed in a lawsuit that now, with that leadership having changed, they really do not seem they wanted to win.

Since the beginning of the covid pandemic response, the district has been embroiled in the all-too-common controversies over school closing and then mask and vaccine mandates and such.

But in PYLUSD, the debate became both very political and very personal, leading a number of families to file a lawsuit alleging numerous civil rights violations, state education code violations, and “fraudulent expulsion” among other things.

The suit was filed in April, 2022 by Chris Palicke on behalf of his son Aidan and the California chapter of the Children’s Health Defense organization.  In it, he alleges that then school board president Carrie Buck and then-Superintendent Jim Elsasser improperly instituted a new masking rule with the intent to target students who parents were the most out-spoken critics of the district during the lockdown.

“They were targeting kids of vocal conservative parents,” said Rita Barnett-Rose, the Palicke’s attorney.

One of the key allegations in the suit is that high schooler Adian Palicke wore a “mesh mask”  to school in the fall of 2021, a mask that was deemed fine (i.e. compliant with the masking rules) until something changed in January, 2022.  Note – a mesh mask does allow for more comfortable breathing than a traditional “blue paper” or other masks – here’s an example:

https://tru47.com/products/pleated-silver-mesh-mask

But the tensions that had been simmering blew up in January of 2022, at which time the suit alleges that Buck and Elsasser – knowing the mesh masks were more popular with the children of the more angry parents –  conspired to to create a new district policy that forbade that type of mask.  At about the same time, parents who supported Buck and Elsasser started calling different schools in the district to demand that certain kids be disciplined because their style if mask made them and their children feel unsafe, said current board president Leandra Blades (she was a board member in opposition at the time.)

With teachers union connivance, a “group of parents called schools and named people because their ‘choice of mask made them feel uncomfortable,” said Blades.  “It was selective enforcement.”

Neither Buck nor the teachers union replied to a request for comment.

And that’s when the kids like Aidan started to feel the heat.  The suit alleges that the students were improperly isolated, humiliated, suspended, and in some cases actually expelled from school.

How were administrators determining if a kid had a “mesh mask” on?  They were, in many cases, shining a flashlight through them to see if the light passed through.  And it did so the kid was disciplined or isolated.

The absurdity of the test is almost mind boggling (but these are people with ‘education’ degrees, so…)  Of course the light shows through, as it does with 99% of all masks worn during the pandemic (if you have an old blue mask laying around the house, try it – of course the light passes through.)

Importantly, both Blades and Barnett-rose say the supposed new mesh mask rule was never even actually officially put into place.

Typically, school district boards must approve policy changes.  In this case, that did not happen and when questioned about it, Elsasser said he was following modified Orange County health codes.

But there was no such code change and a statement from the county health director Dr. Clayton Chau said there was no such specific guidance in the code.

Blades attempted to put this issue on a board meeting agenda but was blocked each time.

There was no health order and no board vote, said Barnett-Rose.

In November of 2022, after two years of chaos Blades said, the majority of the board “flipped’ – in other words, it went from being demonically pro-lockdown, etc. to a far more rational board, a rational board which made a number of changes, including getting a new superintendent, Alex Cherniss, who was already known nationally for his opposition to school closures, etc. during the pandemic response.

“Millions of kids were harmed by the pandemic response,” Cherniss said.

So now you have a district leadership that intellectually and ideologically supports the Palicke lawsuit – but then came April 17, 2024 when Orange County District Court Judge Deborah Servino ruled in favor of a district motion to throw out the lawsuit.

Servino ruled, in part, that the issue was now moot now that the covid response was over.

In other words, Servino’s ruling is equivalent to saying “I’m throwing out your car accident lawsuit because the accident is not occurring right at this very minute right here in this courtroom.”

That issue of “mootness” worries Barnet-Rose and Jeffrey Tucker of the Brownstone Institute,  one of the leading voices that opposed the draconian pandemic response.

“The judge is not addressing the underlying problem that the administration did it, that they violated rights, and, by declaring it moot, they and other government agencies remain in a position to do it again,”  Tucker said.  “That’s not how it works.”

Barnett-Rose agreed, adding if cases such as the Palicke’s are “mooted” routinely around the country (many others have been) the merits will remain undiscussed so “next time, there will be no legal precedent” for fighting another overbearing pandemic response or other “emergency.”

Servino said that even though the facts of the case undeniably showed that certain PYLUSD board members and school officials had engaged in actions that violated students’ constitutional and civil rights, these board members and school officials (Buck, Elsasser, etc.)were nevertheless entitled to full “legislative immunity” because they were purportedly enforcing public health policies. Judge Servino further ruled that because none of the officials’ abusive actions were in “practice at the time of her ruling,” that all claims against them were now “moot,” and the plaintiffs were no longer entitled to judicial relief.

Barnett-Rose was astonished by the ruling.  First, legislative immunity does not apply because there was no actual legislation, but an illegal conspiracy to simply institute the mesh mask policy, circumventing the rules.

She also noted that the District was not “enforcing public health policies” because there was no such official policy.

Which brings us to the conundrum – the District has “won” (for now – an appeal has already been filed) but District leadership now sides – at least ideologically – with the plaintiffs.

Typically, when a school district or a city, etc. gets sued, they turn everything over to their insurance company for defense, settlement, what have you.  PYLUSD did so in this case, which means it is the insurance company that guides and controls the entire process, not the District board.

The District could, if it wanted to, ask the insurance company to step aside so they could handle it but that would mean huge lawyer bills (up to and including paying the insurance company back) and being directly on the hook for any damages.

So if the District leadership wanted to follow its heart now it would expose the District and the parents who pay for it to a potentially massive financial hit.

And that is issue and why, most likely, the District will continue to have its insurance company fight the lawsuit.

“I have to put the interests of the District first,” said Cherniss.  “But I have no doubt unfair and inequitable policies were enforced at that time.”