A pair of lawsuits making their way through the federal courts say the Tulare City School District (TCSD) and its employees engaged in discriminatory behavior through their attempts to slow down the spread of the global COVID-19 pandemic in the city’s schools.
Both cases involve the district’s attempts to keep its students and employees safe in the face of an ongoing wave of deadly disease — COVID-19 has so far killed more than six million people globally, including nearly one million Americans, more than 1,300 of which are Tulare County residents.
Yet the suits are based on the opposite ideals, with one claiming the TCSD is not doing enough to help its special needs students, while the other claims attempts to ensure safety amount to a violation of one employee’s civil rights.
Special Needs Not Met
The first of the two cases is presented to the court on behalf of a 5-year-old TCSD preschool student with autism who is identified in court documents only as JM. The suit alleges the district failed to provide JM with a FAPE (a free appropriate public education) suited to the needs arising from his learning disability during the 2020-21 school year. Further, the lack of action from the district led to JM harming himself, the suit alleges.
According to the suit, JM’s mother reported incidents of her son harming himself and attacking her as she attempted to use work packets provided by the district in lieu of in-person instruction.
One month after TCSD campuses closed in March 2020 — along with those around the state — JM’s mother told school officials of the failures she experienced as she attempted to replace her son’s in-school instruction. She met repeatedly with officials through the remainder of the school year in June, but the two parties were unable to build an individual education plan (IEP) JM’s mother and doctor felt met his needs.
This eventually led to a mediation between the parties before an administrative law judge in which the claims of JM’s parents were partially substantiated.
Untreated Problem Festered
Meanwhile, JM’s misbehavior increased, growing more aggressive and violent.
“During this period of time, JM had to go to the emergency room because he bloodied his own nose and blackened one of his eyes as a result of his maladaptive behaviors,” the suit against TCSD states.
The private clinical school in Fresno where JM’s mother attempted to get adequate hours of one-on-one instruction, ABA Talk, reported that JM’s behavior there deteriorated as well, with the boy throwing tantrums, spitting, assaulting students and staff, and running away from the facility.
The failure to act in JM’s interest and in accordance with his IEP was an intentional act, his lawyer asserts.
“This was not a situation where (TCSD) discussed the need for such support in a meaningful manner,” Daniel Shaw, a San Luis Obispo attorney, wrote on his client’s behalf. “On the contrary, when J.M.’s attorney attempted to get Tulare to discuss the possibility of providing Jackson with some level of in-person support, Tulare’s own attorney stated in clear terms the school district was not going to consider the provision of in-person support, nor would they consider contracting with any outside providers.”
The suit seeks a finding by the federal court that JM was not offered a legally-guaranteed free and appropriate education by the Tulare City School District. It also seeks reimbursement for the cost of placing him in private school, the cost of hiring an aide, interest, attorneys fees and “other relief this court may deem just and proper.”
Ed Aide Sued Wide Group
A second federal case against the TCSD was filed in January by a bilingual instructional aide at Cherry Avenue Middle School over the district’s new policy of requiring proof of vaccination against COVID-19 or a weekly negative test result in order to work.
Guida Dennis sued her employer, district administrators, the school where she works and Tulare County after being informed she would lose her job for refusing to comply with an August 12, 2021 change in COVID policy.
According to her lawsuit, Dennis refused to comply based on her religious beliefs, and was warned of the fallout, including suspension and loss of employment, by Ira Porchia, the TCSD director of child safety.
Porchia is named as a defendant in the suit, as are TCSD employees Jennifer Marroquin, the district’s COVID-19 learning loss mitigation and early childhood director, and Phillip Pierschbacher, TCSD’s assistant superintendent of personnel.
Cherry Avenue Middle School is also a named defendant.
The district filed a motion on Wednesday to dismiss the lawsuit, but a minute order states that “it may still be many months until the motion in this matter is resolved” due to a “significant backlog” of cases in the federal court.
School Policy Trumps God
Dennis’s lawsuit asserts the defendants acted to violate several of her constitutional rights by requiring actions she says violate God’s will. To support the claim, Dennis submitted a letter of religious exemption signed by her pastor. It was accompanied by a letter from Dennis stating her grounds for objecting to taking a COVID-19 vaccine.
Vaccines and invasive COVID swab tests, Dennis says, violate her God-given rights, and she included a passage from the Old Testament as material supporting her decision to go out among Tulare’s students without taking the vaccine.
The Bible, she says, makes it clear our bodies are temples that do not belong to us.
“Therefore, I cannot submit to giving you my personal identifiable DNA and other genetic material,” Dennis wrote. “Doing so violates my sincerely held beliefs as a Christian.”
The letter and a response from Pierschbacher were sent on October 20, 2021. The response from the district was to-the-point.
“The state is requiring all school districts to test employees who are not vaccinated for COVID-19 or refuse to state their status,” he wrote. “I explained to you that you do not have a choice whether or not to test. If you choose not to test … (you will go) on unpaid leave (after using all available leave — personal necessity, vacation and/or comp time).”
Why Sue Tulare County?
Why Tulare County is included in the suit is a bit murky. According to the lawsuit, which comes from attorney Howard Williams of Martinez, Tulare County is in part responsible for the fallout from Dennis’s decision to ignore COVID-19 safety protocol because the Board of Supervisors voted earlier in the year to give individual school districts the right to determine their own COVID-19 policies.
According to the suit, when the supervisors voted on July 20, 2021 they gave authority over COVID-19 safety protocols to the local school districts. That act led indirectly to Dennis being placed on leave in August.
Regardless of how TCSD gained the authority to require proof of vaccination or proof of a negative test from its employees, the district makes it clear what will happen to those who refuse to abide by safety protocol.
“If your religious beliefs prevent you from complying with our policy, you will be disciplined,” Pierschbacher told Dennis at one point during their correspondence.