Challenging our public school district’s obedience of county ‘health’ ‘orders’: Superintendent claims forever ‘health orders’ are legal, then refuses to explain/cite how, then refuses further communication. 100 teachers briefed; zero support! (11 of ?)

Perhaps the most helpful communication is a summary of events to now, an update, and preview of coming events (articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11).

Summary: The California “lockdown” to “flatten the curve and keep hospitals running” has lasted since March 3, 2020, despite statutory limit for emergency powers due to “beyond control” hospitals lasting only 60 days. Thankfully, our local hospitals have been in full control of patient numbers at all times.

As a NorCal public school teacher, I inquired to our district’s leadership and teachers’ union how their negotiated policy to “obey” county “health” “orders” is legal given the above reasonable limits to dictatorial authority.

Three emails were met with silence, then a fourth promising legal action was met with silence. I filed three legal complaints: federal, state, and a grievance for district violation of worker safety to support apparent dictatorial and illegal policy under direct threat of $1,000 fines and one year imprisonment.

Our union responded with support to ask the district, and to communicate indirectly that they wouldn’t pursue the grievance to arbitration because the working conditions were negotiated in good faith. The grievance process finished with district and union agreement the complaint didn’t qualify as a grievance.

I appealed the district’s answer to our community school board for what the district defined as a “written complaint.” From October 2 to December 18 2020 the district was silent, despite policy promising a response within 30 days of the board’s receipt. After this December 13 reminder they were out of compliance for a response, the superintendent answered, that I share below.

I also received a “non-response” after nearly 5 months from my complaint to the US Department of Justice regarding unlimited government. My complaint to the California Department of Fair Employment and Housing complaint was fielded with a phone call response in December, with their promise to follow-up, and silence since then.

In March 2021, our NorCal public school superintendent sent all staff an email citing county deaths from COVID nearing 1,300 with 80,000 “cases.” He also asked for our professional responses to an upcoming survey. I responded with three basic questions: how many of our staff and students have died of (not with) Covid, what is the data for overall county deaths given controversy over causes of deaths, and how many staff and students have been injured by vaccines. He ignored my questions twice, which I then shared with our school’s ~100 teachers in this update.

Update (1 of 5): Superintendent “answers” my questions

In our last episode, I asked questions about the fear-mongering and out of context data shared by our superintendent. He ignored my questions twice. I then shared the big picture of my questions with current status to our ~100 teachers in context of our working conditions. This seems to have motivated another “answer” from the superintendent on March 11.

Hi Carl,

I do apologize for not having responded sooner.

With respect to your questions, we have not collected data related to the number of students and staff who have died of COVID-19 or have been injured from the vaccine. This is not the type of health data that is appropriate for a district to collect. I believe your second question refers to public information available from the county. We use the Alameda County Public Health Department’s dashboard to report on data related to COVID-19. Here is the link.

It appears you are asking for this information because it will “tell the reality of the risks.” We are following the state and county guidelines when considering data related to COVID-19 to help inform our decisions. For example, we consider the adjusted case rate that is used by the state to determine in which tier (i.e. purple) the county is placed. In my March 5 e-mail I was just sharing the data related to the number of COVID-19 cases and deaths to give some perspective on what we have faced as a community this past year.

With respect to your follow up e-mail, as you note you have already inquired about the issue emergency powers. We did address this concern. I’ve included our previous response for your inquiry.

Thank you for your support of our HHS students.

Thanks,

Update (2 of 5): I ask citation of 60-day emergency powers limit

I responded the following morning to superintendent, school board, teachers’ union leadership, my school’s administration, and our two committee members, asking citation of how 60 days of emergency powers extends to over a year:

Thank you for responding, (name omitted).

Yes, HUSD provided this answer to my complaint in your December 18 email: “Our county public health officer has issued public health orders in accordance with the Governor’s declarations of state of emergency as a result of a local health emergency.”

But (name omitted): County public health orders are authorized by the California Emergency Services Act (ESA) up to 60 days, and expired in May 2020.

That is, a governor’s terminated and inactive ESA provides zero authority for the state, county, or HUSD to impose “health orders” under threats of $1,000 fines and a year in jail (and I assume to fire employees and permanently remove students).

My reasonable and obvious question: How is HUSD policy legal to accept unauthorized and expired “orders”?

(Name omitted), you claim that answer exists in HUSD answer to my complaint, yet I do not find that answer in any district correspondence. That’s why I already and repeatedly ask that you cite that answer as I ask my question again for the 9th time. The only answer I find is HUSD will “just follow orders,” ignores the 60-day limit to dictatorial power, and therefore has embraced illegal and unconstitutional policy for “health orders.”

Sounds harsh, but that’s what I see. Talk me down if I’m wrong by citing the part of HUSD’s answer that proves me wrong.

I admonish that every HUSD and California classroom is teaching limited government under law. This means that 60 days = 60 days, not 365+ days. We also teach that our constitutional government is fragile, and must be defended. All our students also learn that unlimited government is dictatorship to say whatever the “law” is for as long as they say it, with each HUSD employee under Oath to expose and end any unconstitutional policy.

What I’m asking is for HUSD to agree that 60 days = 60 days and ask the county and/or state how 60 days means over a year (that should be interesting).

If you reject that option, then please quote from your answer how HUSD policy is legal to accept unauthorized “orders.” Because this is my 9th time asking for the legal authority you claim exists in HUSD answer to my complaint, it should be able to complete this sentence: “HUSD has a legal policy to adapt county health orders despite their authority being expired 10 months ago because…”

I respectfully remind everyone that we are all under Oath to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic,” with a foundation of US and California government of limited authority under law that nobody is above.

Update (3 of 5): Superintendent refuses to cite/explain, then cuts-off communication

The superintendent responded that day, March 12 that district leadership “just follows orders” and are “busy”:

Dear Carl,

I will reiterate that the district is following state and county guidelines as outlined by Senate Bill 98, the California Department of Education, the California Department of Public Health, the Alameda County Office of Education, and the Alameda County Public Health Department. If you do not agree with the state and county guidelines or if you believe we are not following them, please pursue your questions and concerns with the appropriate agency. We are busy planning for in-person learning opportunities this spring, expanding summer school programming, and opening the 2021-22 school year for in-person learning. We believe we have met our obligation to respond to your questions and concerns, so the district will not be responding to these inquires any further.

Thanks,

Update (4 of 5): I respond that district leadership fails expectations of all middle school students in Social Science, I promise to contact other state agencies and report

I responded the following morning citing Dr. King and the expectations of all our district middle school students to cite specific textual evidence that they all refuse to do. I promise further research and to report back.

§ 8627.5. Authority of Governor; nonsafety regulations on delivery of food products; pharmaceuticals; and other emergency necessities; form of orders and regulations; effect; duration
(b) The orders and regulations shall be in writing and take effect immediately on issuance. The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first. (emphasis added) ~ California Emergency Services Act

“Do not conform” is difficult advice in a generation when crowd pressures have unconsciously conditioned our minds and feet to move to the rhythmic drumbeat of the status quo. Many voices and forces urge us to choose the path of least resistance, and bid us never to fight for an unpopular cause and never to be found in a pathetic minority of two or three.” ~ Dr. Martin King, Transformed Nonconformist, November 1954

Dear (superintendent), HUSD School Board, HEA leadership, and HHS Admin,

Because (superintendent) only emailed me, I include everyone to complete this communication.

I asked how HUSD policy is legal to incorporate expired “health orders.” This is similar to asking for an explanation to a sports rule, classroom rule, or traffic law. The answer would be simple.

Instead, HUSD gives me a document, claims it has the answer, and when I ask to cite the explanation repeatedly, refuses then cuts-off communication.

Although it is HUSD’s legal responsibility to provide explanation to employees how HUSD policies incorporating expired “health orders” are lawful, I do appreciate sources to ask, will do so, and will report my findings.

I am personally disappointed at HUSD’s multiple failures to provide a simple explanation to an OBVIOUS question, demonstrate the curiosity to ask official sources, and to have nothing to say about our mutual Oath.

As I wrote from the beginning and HUSD declines:

I am literally asking the educated professional adults at HUSD to do what all California students are required in Grades 6-8 (page 81 of Common Core Standards):

“Cite specific textual evidence to support analysis of primary and secondary sources.”

“Civics is not limited to the study of politics and society; it also encompasses participation in classrooms and schools, neighborhoods, groups, and organizations. . . . What defines civic virtue, which democratic principles apply in given situations, and when discussions are deliberative are not easy questions, but they are topics for inquiry and reflection. In civics, students learn to contribute appropriately to public processes and discussions of real issues. Their contributions to public discussions may take many forms, ranging from personal testimony to abstract arguments. They will also learn civic practices such as voting, volunteering, jury service, and joining with others to improve society. Civics enables students not only to study how others participate, but also to practice participating and taking informed action themselves.” ~ California History-Social Science Framework, pg. 9

From page 14:

“Teachers are encouraged to have students use the community to gather information regarding public issues and become familiar with individuals and organizations involved in public affairs… Whenever possible, opportunities should be available for participation and for reflection on the responsibilities of citizens in a free society… At each grade level, students can reflect on the individual responsibility and behavior that create a good society, consider the individual’s role in how a society governs itself, and examine the role of law in society.”

From page 15:

“Educators want students to perceive the complexity of social, economic, and political problems. They want them to be able to both comprehend and evaluate an argument and develop their own interpretations supported by relevant evidence. Educators want them to have the ability to differentiate between what is important and what is not. Students need to know their rights and responsibilities as American citizens and have both the capacity and willingness to participate in a democratic system of government. Educators want students to understand the meaning of the Constitution as a social contract that defines a democratic government and guarantees individual rights. Educators want them to respect the right of others to have different beliefs and ideas. Students need to take an active role as citizens and know how to work for change in a democratic society. The value, the importance, and the fragility of democratic institutions must be understood by all students. Only a small fraction of the world’s population now or in the past has been fortunate enough to live under a democratic form of government, and students need to understand the conditions that encourage democracy to prosper.”

From Appendix E on page 780:

“In today’s information age, informed citizens must be prepared to evaluate multiple and often contradictory sources to identify evidence for constructing claims, making arguments, or drawing conclusions about public issues, policy, and political candidates.”

Update (5 of 5): Silence from ~100 teachers in response to dictatorial government, ridicule and cognitive dissonance from Social Science Department

Up to today, March 27, none of the ~100 teachers have responded to my email documenting the imposition of dictatorial government on our teaching and learning.

On March 11, I followed my faculty email with the following to our eight Social Science teachers. I give their responses after.

Dear Social Science colleagues,
Can any of you see something I don’t about CA having only 60 days of emergency authority for “health orders”?

I encourage you to read what I sent: HUSD ignored this question 7 times; just acted as if I never asked. With 3 levels of Grievance and my warning of lawsuits to come (hopefully not from me), I’m sure their attorney was consulted.

HUSD ignoring a central question 7 times leads me to the likely conclusion that HUSD is aware they’re supporting an Emperor’s New Clothes illegal policy. If they had sound legal reasoning that 60 days of authority can be extended indefinitely, they would have answered.

But that’s why I’m asking you: anyone see any reasonable legal explanation how CA (among many states) can claim unlimited “emergency powers”?

If you can’t explain “health orders” as legal, will you co-sign a letter to ask HUSD for an explanation? I encourage all staff to add their own questions. I’ll send a draft to all willing for approval before I send.

One day our students will ask you about what you did about illegal “orders;” be proud of where you stand

On Oath,
Carl

Teacher 1’s response:

I strongly disagree with you position. I also believe any lawsuit you put forward will lose, but it will have the slight effect of taking money and resources from the District that could have been better spent on our students. Lastly, I have zero interest in debating this topic with you.

Teacher 2’s response:

As I have proudly said many times before, in all matters of life, I agree with (teacher 1). Not interested.

Teacher 3’s response:

Mr. Herman, I certainly do not support the idea that HUSD should ignore its negotiated contract with teachers or spend our resources on lawsuits that don’t have support from the majority of the community, the staff, the district, the county, the state, or the federal government. This does not feel like it falls under the purview of the district, even if I agreed with a single premise of the lawsuit, which I do not.

If you have actually been threatened with being fired or financially or professionally penalized by HUSD, please send relevant documentation to HEA, as to my knowledge we have not heard of anyone’s job being at risk during this time and in fact have worked hard to ensure that layoffs were not on the table during bargaining. It makes no sense for the district to institute a lawsuit aimed at opening businesses/schools, when in fact we have remained open and district employees continue to get full pay and benefits. Closing school sites to students due to safety reasons is well within the purview of the district.

From a historical perspective, I cannot think of a single instance of a major state of emergency that was limited to 60 days – the precedent of remaining in states of war or emergency for years is quite clear. There have been numerous SCOTUS cases regarding this, including some specific to pandemics. If you are trying to change the state or federal constitution, your government representatives are likely more able to help than our school district.

So, no, I will not sign on to negate my negotiated protections or encourage the district to spend any money or effort in questioning state or county orders.

Teacher 4’s response:

I stand with my department – well said (teacher 3, and with “HARD PASS” emoji)

My follow-up:

Thank you for speaking up, colleagues!

That said, I’m not sure if you understand the legal question whether the state and county have authority, nor my narrow concern. So with no interest in argument, to hopefully clarify:
The California Emergency Services Act (ESA) allows 60 days of emergency powers. That ended in May 2020. Therefore, without reauthorization, I see zero authority for emergency powers. I’m asking you if you see any authority for which you can cite the law or case law. This is not a war, so that law is not applicable. Unless anyone can point to other applicable law, ESA is definitive for its time limit.
My concerns include those in our community, state, and nation deprived of work because they’ve been declared “non-essential,” and that HUSD is open to being sued. I’m not advocating for any lawsuit; my concern is to prevent them by everyone being clear on the limits of emergency powers. Because HUSD ignored 7 times my direct and specific question to explain such authority, and all legal opinions I’ve read agree that 60 days means 60 days, the prima facie evidence is that emergency power ended in May 2020.
I’m not advocating any policy or action. I’m asking how the orders are lawful given a 60 day limit. I also asked (superintendent) 3 questions from his March 5 Staff Update that he ignored, so I’m also interested in staff having the power to ask questions and receive answers.

Up next! I contact 12 California government and health agencies to ask how 60 days of emergency powers can exist 10 months after they’ve expired (so far, all ignore the question and/or lie in omission).

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I make all factual assertions as a National Board Certified Teacher of US Government, Economics, and History (also credentialed in Mathematics), with all economic factual claims receiving zero refutation since I began writing in 2008 among Advanced Placement Macroeconomics teachers on our discussion board, public audiences of these articles, and international conferences (and here). I invite readers to empower their civic voices with the strongest comprehensive facts most important to building a brighter future. I challenge professionals, academics, and citizens to add their voices for the benefit of all Earth’s inhabitants.

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Carl Herman worked with both US political parties over 18 years and two UN Summits with the citizen’s lobby, RESULTS, for US domestic and foreign policy to end poverty. He can be reached at Carl_Herman@post.harvard.edu

Note: My work from 2011 to October 2017 is on Washington’s Blog, which the owner closed from Internet censorship in 2019, and here since. Work back to 2009 is censored by Examiner.com (blocked author pages: here, here). This means that some links in essays are inactive. If you’d like to see those articles, go to http://archive.org/web/, paste the expired link into the search box, click “Browse history,” then click onto the screenshots of that page for each time it was screen-shot and uploaded to webarchive.