January 28, 2022
Via Email and U.S. Mail
Jan La Torre-Derby, Ed. D. Superintendent
Novato Unified School District 1015 7th St
Novato, CA 94945
Jim Hogeboom Superintendent
San Rafael City Schools
310 Nova Albion Way,
San Rafael, California 94903
P.O. Box 221562 Carmel CA 93923 tracyhendersonlaw@gmail.com 831.917.1593
Tara Taupier, Ed.D. Superintendent
Tamalpais Unified School District 395 Doherty Drive
Larkspur, CA 94939
Dr. Brett Geithman
Superintendent
Larkspur-Corte Madera School District 230 Doherty Drive
Larkspur, CA 94939
Kimberly McGrath Superintendent
Reed Union School District 77 A Karen Way
Tiburon, CA 94920
Dear Ms. La Torre-Derby, Mr. Hogeboom, Ms. Taupier, and Mr. Geithman, Ms. McGrath,
The undersigned counsel represents Marin Parents United who have scholars in Novato
Unified School District (“NUSD”), Tamalpais Unified School District (“TUSD”), San Rafael
City Schools (“SRCS”), Reed Union School District (“RUSD”) and Larkspur-Corte Madera
School District (“LCMSD”). My clients inform me that children and parents within your districts
are suffering from illegal discrimination based on your conduct of requiring all persons who
participate in or try to watch indoor activities to be COVID injected. I also write to address the
fact that my clients and their children have been subjected to additional discrimination and
harassment at the hand of district employees due to NUSD’s, TUSD’s, SRCS’s, RUSD’s and
LCMSD’s forced application of California Department of Health’s (“CDPH”) non-binding1
guidance in relation to masking and quarantining healthy people. This is unfortunate considering
each school district has a better solution to address the public health concerns – use the COVID
funds received to follow the OSHA regulations related to modifying the ventilation systems in
buildings – instead of illegally excluding parents and children from events. To that end, the
purpose of this letter is to respectfully demand that NUSD, TUSD, SRCS, RUSD, and LCMSD
immediately cease all discriminatory and illegal conduct and adhere to its ministerial duties2 to
improve its ventilation systems in its buildings if you are worried about COVID. I trust you will
find this information helpful and a pathway back to choice as it concerns medical issues and
public health.
The decision whether or not to enter a child or oneself into a medical trial belongs to the parent and their physician. School districts should respect the fact that getting a COVID injection, an experimental medical product, is a private decision for which they need not be involved. Further, there is no California law that grants individual schools or school districts the authority to unilaterally require additional “vaccines” to the K-12 immunization schedule in order for students to enjoy activities. Education and extracurricular activities are both fundamental rights under the California Constitution. Moran v. School Dist., 350 F. Supp. 1180, 1184 *8 (extracurricular activities … are “generally recognized as a fundamental ingredient of the educational process); Section 5, Article IX of the California Constitution. In fact, there are simply no valid legal grounds to exclude a child from in-person education or activities for refusing experimental medical procedures such as the COVID injection. Ed Code 48900(a)-(r).
If any of your districts continue to mandate the COVID injection to participate in activities, you will be breaking the law by illegally discriminating against those that choose not to enter themselves into a medical trial. Civil Code § 51-52 et seq. Entry into a medical trial is a personal decision that requires informed consent. 21 U.S. Code § 360bbb–3; Health and Safety Code § 24176. It is especially important for you to understand that under federal law when a product is only authorized for emergency use, it requires informed consent.3 To date, there is no available COVID injection that has been approved by the Federal Drug Administration (FDA)
1 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, Guidances, 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”).
2 44.46. The relevant ministerial duties under the APA, but are not limited to, the requirement to provide due process, to provide the “empirical study or other data” on which the agency relies, and to enforce the rule as a “performance standard” establishing flexible means of compliance, when, as present, such flexible enforcement would achieve the same or better result. (Gov. Code §§ 11346.1; 11340; 11340.570; 8 Cal. Code Regs §3205(c)(2)(E).) )
3 21 U.S. Code § 360bbb–3
and there is not one expected until 2023, if ever.4 Even so, the FDA approves drugs and removes them from the market regularly. With the level of deaths and other adverse reactions, that would be the only sound end to this medical experiment. And I am sure you do not want to make the very serious decision for a parent considering the very real risks of entering yourself into a medical trial.
As to attempting to mandate the COVID injection on scholars, there is a list of ten childhood immunizations required in order for students to gain admittance to public schools in California at certain stages of their education, and this list does not include any COVID-19 injections. See Cal. Health & Safety Code § 120335(a)(1)-(10). Under California Health & Safety Code § 120335(a)(11), only the California Department of Public Health (the “Dept” or “CDPH”) can add a new vaccine to this childhood immunization schedule, and at this time, CDPH has not done so. No matter how eagerly your school districts would like to impose a new vaccine on unwilling students and their parents, California law simply does not allow individual public schools or school districts to unilaterally decide which additional vaccines its students must take prior to being allowed to enjoy an in-person public education, an education guaranteed by our California Constitution, Article IX. Even the CDPH is expressly bound by statutory limitations on its authority to take measures to protect the spread of diseases as it can do so only when necessary and only if the measures actually work. Health & Safety Code § 120140.
Moreover, even if the CDPH itself elected to mandate a COVID-19 injection under Section 120335(a)(11) for all relevant California public schools at some point, California law also requires that both medical and personal belief exemptions be allowed. See Cal. Health & Safety Code §120338. Accordingly, any unilateral COVID-19 mandate that your school district is imposing on its students, and particularly without allowance for medical and personal belief exemptions, is illegal under California law and is also unconstitutional on its face.
Most importantly, while neither CDPH nor our state legislature has mandated any COVID-19 vaccine for public or private school attendance, neither authority can do so while the vaccines are still under emergency use authorization without express informed consent. 21 U.S.C. § 360-bbb-3 (the “EUA statute”). This EUA5 statute explicitly states that anyone to whom an EUA product is administered must be informed of the option to refuse the product, as well as the risks and benefits of receiving it. Although the FDA has purportedly approved one of the mRNA injections, in reality, the approved injection, the Pfizer Comirnaty vaccine, is not available or in widespread circulation in the United States. Instead, the only COVID-19 injections being offered to members of the public in California, including students 12 years of age or older, are still under emergency use authorization, including the Pfizer BioNtech COVID-
4 https://www.fda.gov/media/150386/download?fbclid=IwAR3_- sRU7mhJUEqNrV0Y0IgH8QmRRjZvWJteQdoXP9rL7IRvSJZHycL3aPA
5 The FDA has not approved any of the COVID-19 shots currently available in the United States. On August 23, the FDA granted BioNTech Manufacturing GmbH’s Biologics Licensing Application to distribute the Comirnaty vaccine in the United States once certain conditions are met; however, the Comirnaty vaccine is not currently available in the United States and will not be until the supply of the Pfizer-BioNTech vaccine is first exhausted. See https://www.fda.gov/media/151710/download. The Pfizer-BioNTech vaccine is currently available only under an EUA, which the FDA extended also on August 23, 2021. See https://www.fda.gov/media/150386/download.
19 vaccine product. There is consequently no full FDA approval of any COVID-19 injection that is available for anyone in California. In addition, all COVID-19 vaccines, including the Pfizer Comirnaty vaccine, remain authorized only under emergency use for ages 12-15, and thus no public entity can mandate such an experimental vaccine for students in that age range or anyone for that matter. If neither CDPH nor our state legislature can currently mandate these vaccines due to federal EUA law and federal pre-emption issues, clearly your school district cannot unilaterally mandate an experimental use COVID-19 vaccine for its students either.
For your information, when a product is not yet licensed or approved by the FDA, it is considered “investigational.”6 This “investigational” status does not change, even if an EUA is granted.7 Per the FDA, an investigational drug can also be called an “experimental drug”8 and when an experimental drug is administered, it is the equivalent of entering the recipient into a clinical trial. Federal laws explicitly prohibit a child from being enrolled in the clinical trial of an “investigational” or “experimental” product without the parents’ express consent, and even then, only under certain conditions. A child cannot be entered into a clinical trial without express consent from their parents, and only if there is a benefit and a minimal risk to the child. 45 CFR 46.404,45 CFR 46.408. Further, if there is a greater than minimal risk to the child, there must first be a “direct benefit” to that specific child, and any risk must be “as favorable as” those presented by alternative approaches. 45 CFR 46.405. Whereas, here, children have an undisputed 99.97% chance of surviving COVID-19, face serious threats of life-altering conditions and even death from administration of the COVID injection, and have safe, alternative treatments available to them, this legal threshold cannot be met and these children cannot be forced to enroll in these medical trials, with or without their parents’ consent.
The same issues apply to mandating adults to be “vaccinated” before participating in watching their children’s activities. The California Unruh Act is very clear – discriminating against someone based on a medical condition – such as their vaccination status – violates the law. Specifically, pursuant to Cal Civ Code §51(b), (e)(3), all people within the state of California are entitled to all privileges and services without discrimination based on many things including medical conditions. Section 52 of the same 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 such rights, whether statutory or constitutional, and the statutory penalties include monetary fines up to a maximum of three times the damages, which in this case would be lost wages, and a civil penalty of $25,000 against each person who denies, aids or incites a denial of the right. §52 (b)(1-2). This statute also provides for attorney’s fees to be determined by a court. 52 (b)(3). The Health and Safety code mentioned earlier carries similar statutory penalties whether the forced entry into a medical trial is negligent or intentional. Health and Safety Code § 24176(a)-(c). Education Code § 35160 states “the governing board of any school district may initiate and carry
6 COVID-19 Vaccine: Questions and Answers, https://www.niaid.nih.gov/diseases-conditions/covid-19-vaccine-faq (“A vaccine available under emergency use authorization is still considered investigational.”) [as of September 13, 2021]
7Ibid. (“A vaccine available under emergency use authorization is still considered investigational.”)
8 Understanding the Regulatory Terminology of Potential Preventions and Treatment of COVID-19, https://www.fda.gov/consumers/consumer-updates/understanding-regulatory-terminology-potential-preventions- and-treatments-covid-19 [as of September 13, 2021]
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.”
I understand that your school districts purport to follow Marin County Department of
Public Health (MCDPH) guidance which purports to align with CDPH Guidance when it comes
to quarantine recommendations. The problem for your district is that the “guidance” is simply
not binding, and thus invalid9 as it is being applied as a “mandate”. As it is being implemented in
the school systems based on a complete misunderstanding by your district and its employees of
its actual legal import, and because many lawyers who represent the school districts and school
boards are giving very poorly reasoned legal advice especially if they are working to support
discriminatory conduct by employees, significant civil and potentially criminal legal liability
attaches on an individual, school board and public employee basis.
We have no doubt that your district has been told by either its counsel, CDPH, or members of the California Teachers
Association that the CDPH guidance is “mandatory” or has the “force and effect of law.” CDPH itself and others including school district attorneys have taken this one step further and threatened school districts with penalties for failing to follow this “mandatory” guidance. The public pressure to enter children and adults into a medical trial is significant. This is simply legally incorrect and you should reconsider seeking a second opinion. The bottom line is the guidance is a non-binding recommendation pursuant to the Administrative Practices Act that schools are free to disregard Gov. Code § 11340.5(a) and it is illegal to negligently or intentionally force someone into a medical trial without their informed consent. Health and Safety Code §24176.
I am also informed you are illegally quarantining healthy children. It
e Health and Safety Code §120140 only authorizes CDPH to “take measures that are necessary10 to …prevent [the] spread of communicable diseases.” CDPH
derives its authority to “take measures” from this statute only if there is a necessity and only if they actually work. This means, if challenged in court, the CDPH would have to prove why it is necessary to mask or quarantine a healthy child who, as a group, rarely get COVID-19, rarely spreads COVID-19, and has a 99.97% recovery rate if he or she does contract it especially since
9 Reillly v. Superior Court (2013) 57 Cal 4th 641, 649; Gov. Code §11356.1(b)(2); Ed Code §33031; Gov. Code 11346.1(b)(2).
10 As to the necessity requirement, under the health and safety code, health officers can only issue health orders that are necessary. In most school districts – which are ALL open – there are not enough facts to support a finding of “necessity.” 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. This means, if challenged in court, the CDPH would have to prove why it is necessary to test a healthy child who rarely gets COVID-19, rarely spreads COVID-19, has a 99.97% recovery rate if he or she does contract it.
is illegal to
quarantine healthy people per California law. Quarantine can only be imposed where, under the
facts as brought within the knowledge of the health authorities, reasonable ground exists to
support the belief that the person is actually afflicted. In re Application of Arata (Cal. App. Apr.
29, 1921), 52 Cal. App. 380. The MCDPH guidance based on the CDPH recommendations also
do not provide your school districts with the legal right to force a health child to mask or
quarantine. Any police power given to a health department in the time of public health issue is
strictly limited by statute. Th
there is conclusive evidence that masks are ineffective11.
otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by,
Education Code § 35160 states “the
governing board of any school district may initiate and carry on any program, activity, or may
any law and which is not in conflict with the purposes for which school districts are established.”
Teachers are likewise held to strict account for conduct. 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. Thus, forced masking and quarantining
simply exceeds any power delegated to the school districts by the legislature and school districts
are not equated to the health officer.
This means, if challenged in court, the MCDPH would have to prove why it is necessary to mask or quarantine a healthy child who, as a group, rarely gets
COVID-19, rarely spreads COVID-19, and has a 99.97% recovery rate if he or she does contract it12.
Notably, CDPH recently conceded in court that the guidance — the quarantining, masking and testing —- is merely a recommendation schools can disregard. California law vests state agency 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 if officials comply with certain legal requirements of statutory compliance and due process as applicable to the specific circumstances under the state of emergency. In the Administrative Procedures Act (APA), the California Legislature has set forth clear statutory requirements for such “guidance” or “orders” to be implemented “with the force of law.” If those processes are not followed, the guidance has no mandatory effect. Specifically, the APA provides that no state agency “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).) Already, other agencies such as OSHA have properly used APA rulemaking, on an emergency and permanent basis, thereby establishing ministerial duties regarding the most effective known ways to prevent against COVID-19 in such settings. (8 Cal. Code Regs §§ 3205(c)(2)(F), 5142-5144.)Unfortunately, CDPH and other state officials have followed none of the required APA procedures related to the CDPH guidance, and as a result their attempted enforcement of the challenged guidance as a mandate or rule is void as a matter of law.
It is truly important for your district to consider the true legal ramifications of mandating a non-binding government recommendation in a punitive, discriminatory and
11 https://www.lifesitenews.com/news/47-studies-confirm-inefectiveness-of-masks-for-covid-and-32-more-confirm- their-negative-health-effects/
12 https://www.lifesitenews.com/news/47-studies-confirm-inefectiveness-of-masks-for-covid-and-32-more-confirm- their-negative-health-effects/
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. Your
districts, by mandating the COVID injection to participate in in-person activities or quarantining
healthy people, has clearly exceeded that authority.
harassing manner. U
Sincerely,
Tracy L. Henderson, Esq
nder Gov. Code, § 815.2, subd. (a), a school district is vicariously liable
for injuries proximately caused by negligence. This conduct simply needs to stop. In short, you
have been given poorly reasoned legal advice that will surely land you personally and the school
district in costly litigation if the discriminatory conduct does not stop.
I trust this provides a clear and appropriate pathway back to learning environments where
children thrive instead of suffer and parents are afforded the normal participation in their
children’s activities. Let me know if you have any questions.
Cc: Clients
Matt Willis, Marin County Public Health Officer
Lisa Santora, Marin County Deputy Public Health Officer
Mary Jane Burke, Marin County Superintendent of Schools
Katie Rice, Marin County Board of Supervisors President
Court Wiedenmayer says
L.A. County Supervisor Katheryn Barger wrote: “This past weekend, we witnessed more than 70,000 fans in attendance for the National Football League NFC Championship game at SoFi Stadium, with a vast majority not wearing masks.”
L.A. Public Health officials have indicated “we have not observed any Covid-19 spikes resulting from prior games this season from games at that stadium.” “(So why do) we have stricter County mandates in place that are neither followed nor enforced, causing more feelings of frustration for residents who have been subject to masking requirements more strictly enforced in other settings like schools, restaurants, and retail.”
Tina G McMillan says
“My clients inform me that children and parents within your districts are suffering from illegal discrimination based on your conduct of requiring all persons who participate in or try to watch indoor activities to be COVID injected.”
Tina G McMillan says
The above statement is factually incorrect.
From NUSD: “Currently, there is no Covid vaccine mandate for children. To enroll in school, NUSD requests the usual immunization information. Required documentation can be found here https://nusd.org/required-documents-2/. Covid vaccinations are optional.”