In February 2022, Jennifer Van Laar, Managing Editor, covered Kamdin Hernandez’s story. He was a 9-year-old boy with ADHD. He was forced to sit outside and harassed at school by staff and administrators from Garden Grove Elementary School, Simi Valley, California, for refusing to wear a mask. Hernandez’s father fought for his son and a criminal case was brought against Hernandez for “campus disruption.”
This pattern of targeting children appears to have been repeated in other schools throughout the state. These incidents, which are becoming more and more common, bear the hallmarks of First Amendment violations.
We published an exclusive report on July’s Gavel Project. This organization is responsible for California-based lawsuits regarding the infringement of parental and student rights. Tracy Henderson, a pro bono attorney, helped Shay and Jessica, parents of children who attend Foothill Ranch Elementary School. Jessica and Shay have filed claims against FRE, the Saddleback Valley Unified Schools District (SVUSD), of Mission Viejo. They were accused of victimizing their children for not complying with the school’s mask mandate.
Jessica’s 10-year-old son and Shay’s daughters, aged 9 and 11, and Shay’s daughter (9 and 11 years respectively at the time) were separated from their classmates and placed in unsafe situations. FRE Principal Deborah Shaver and Assistant Principal Christina Stevenson claimed that their children were bullied, intimidated, harassed, and endangered.
According to Shay’s claims,
“They were also treated badly by their fellow students, who were implicitly encouraged by FRE faculty to bully my daughters.”
Ryan Heath, CEO, and founder of The Gavel Project elaborated on this case and others under his aegis.
Tracy Henderson represents California children involved in The Gavel Project. Tracy represents Jessica and Shay at SVUSD. The Gavel Project will pay Tracy’s compensation pro bono as an act of charity (like the Coronado Case that we filed last week). The Gavel Project provides only pro bono representation and isn’t for hire.
These cases, and others similar ones that The Gavel Project is funding, have First Amendment value. These cases raise the important question of whether government officials can make citizens “play pretend” by forcing them to conform to unjustifiable “mandatory” guidelines that clearly infringe on basic human needs, such as access to oxygen.
From Dr. Anthony Fauci “retiring” to verifiable data showing that the harm and side effects from the vaccines were deliberately downplayed and buried, the COVID agenda with two years of lockdowns forced masking and demands to be vaccinated or suffer the consequences continues to fall apart. In August, CNN medical analyst and faithful COVID policy disciple Dr. Leana Wen did a mea culpa on her mask fascism because her own child is now suffering developmentally from the perpetual masking.
The tiny violins are just the beginning. Wen isn’t the only one to offer apologies or do a 180. These “former” zealots need to be viewed with suspicion and held accountable for the irreparable harm done to America’s children.
These orchestrators and those who did their bidding should be held responsible. This is why The Gavel Project is involved in the abuses of student and parental rights. Both the California Constitution and the United States constitutions protect these rights.
Tracy Henderson, a pro-bono lawyer, discussed the statutes supporting this:
The California Constitution provides that in-person instruction in public schools is a fundamental right. California Constitution article AIX § 5. All students are entitled to “equal rights and opportunities” in education (Ed. Code § 200) and to participate fully in the educational process “free from discrimination and harassment.” Ed. Code § 201, sub. (a); To effectuate this policy, which is guaranteed by the federal and state Constitutions, the Legislature requires California’s public schools to take affirmative steps to “combat … forms of bias.” (Ed. Code § 201, sub. (b).) They also must “prevent and respond to acts of bias-related incidents” in an “urgent” manner (§ 201, subd. (d)) Donovan v. Poway Unified School Dist., 167 Cal. App. 4th 567, 606; Civil Code § 51-52 et seq. Attendance at school in California is compulsory according to California law. Cal Ed. Code § 48200.
The only way that a school can expel/suspend/exclude a student is per Education Code SS 48900 which requires facts of a “clear and present danger.” This requires facts about things like bullying, guns, drugs, vulgarity, etc.
However, this does not necessarily mean that your child is healthy.
Jessica and Shay’s children were not sick. They were not positive for COVID and they weren’t putting anyone at risk. They were exercising their right to breathe freely.
These events were triggered by the NFC Championship match at SoFi Stadium in Los Angeles on January 30, 2017.
California had an indoor event mandate that required a mask to be worn. SoFi also had strict rules regarding vaccinations and masking. Los Angeles Mayor Eric Garcetti and Governor Gavin Newsom attended the game. They were photographed extensively walking around SoFi stadium, looking completely maskless, and were frequently taken for photos. Both elected leaders were criticized for their hypocrisy and both offered equally absurd excuses as to why they weren’t violating their own diktats. A few days later, California’s health officials announced that they would be eliminating the state-mandated mask requirement for indoor venues effective February 16.
Newsom was schizophrenic in his decision to lift the mandate from California public schools. Newsom stated that he would “revisit the school issue” after February 16.
Some Orange County elected officials have supported Newsom’s COVID governance by fiat since 2020. The county sued Newsom in August 2021 over the school mask mandate. Despite Newsom’s refusal to hear it, Orange County and many other counties continued to oppose Newsom’s unconstitutional orders. The indoor mask mandate was a myth that most counties had abandoned long before January 30, 2022. Waves of protests broke out at schools throughout the state after Newsom’s hypocrisy was revealed.
Shay stated that by mid-February, Shay had noticed that some students and staff were leaving the school without masks and going to classes. It appeared that there was little or no resistance.
In addition, the children observed that forced indoor masking was ineffective in the months preceding. Every day, email alerts about Covid infections were sent to the FRE community. My children were able to see that SVUSD’s mitigation measures, which included indoor mask mandates that didn’t stop the spread, were not effective. My daughters decided to let their air flow freely around that time. Because so many of their classmates, and FRE staff, were wearing masks while at school they decided not to. They had grown tired of confusing and constantly changing rules they couldn’t understand.
February 9, 2022, was the first day Shay’s 11-year-old and 9-year-old daughters, Shay, decided to leave behind their masks to go to school. Deborah Shaver, the school principal, manipulated the youngest child into following her lead.
My nine-year-old daughter was spoken to by Mrs. Shaver outside of her class. She told her she was too young to make that decision and that all she had to do was put on a mask and return to school or go home.
We can bring babies to Drag Queen story time, and three-year-olds can declare that they are of another gender and be put on puberty blockers. Shay’s nine-year-old daughter was told that she was too young to decide for herself whether she wanted to wear a mask. Are you having trouble breathing? Too young to understand this!
It should make sense.
My third-grade daughter has always been fearful of Mrs. Shaver. She has described Mrs. Shaver’s actions as “mean” to other students at times. She made her feel “in trouble” that day. Mrs. Shaver and Mrs. Petrone [my daughter’s] teacher told her she would be “missing out on” a lot of “fun stuff in a class by refusing to mask. She was excited about the “whale project”, which she had been anticipating all year. My daughter was convinced to wear a mask after she realized that the whale watching field trip might be canceled.
At that moment, Mrs. Shaver decided not to consent to hug my daughter.
This applies to distances of three to six feet.
Shay explained that this was not only a violation of her nine-year-old child’s bodily integrity but that her youngest still recalls the encounter with Principal Shaver being, “creepy.”
Principal Shaver called Shay the next day to inform her about the “incident.”
“Moving forward, she would support her decision to not wear a face mask and ensure that all students who are not wearing masks receive the proper instruction. She would then find a way for it to work.”
Shay said that Principal Shaver told her that her daughter, Shay, would be sitting at a table outside her classroom with other students who also participated in the no-mask demonstration.
Principal Shaver called Jessica about Jessica’s 10-year-old son, who was not following the mask mandate. Jessica, like Kamdin Hernandez, had been diagnosed with ADHD. Jessica received a similar phone call from Principal Shaver about her 10-year-old son who was not complying with the mask mandate. His anxiety and concentration levels are increased and it affects his breathing.
Jessica explained her claim in detail.
On February 9, 2022, Mrs. Shaver, the principal of the school, called me. She advised that I was on speaker and that there was also district personnel on the line. She informed me that my son was not wearing a mask. She asked me if I knew about his decision. I confirmed my understanding and said that I supported his decision. Moving forward, she explained that if my son chose not to wear a face mask, he would be barred from the classroom. Instead, he would sit at the tables in front of Ms. Petko and do all of his schoolwork there.
Principal Shaver changed the ground rules on February 10, after Jessica’s and Shay’s children chose to go to school without wearing masks. Shay said that Principal Shaver’s demeanor had changed and her language had also changed. Shay was told by Shaver that the principal had stopped being cooperative and that she was removing her daughter “for safety and health reasons”.
Principal Shaver stated that Shay’s 9-year-old daughter was a danger to students and staff. She was being “excluded”, and would be given an unexcused absence for the day.
Shay wasn’t happy with this approach, particularly the fact that her children would be considered “truant” even though they were present at school and had completed their coursework. Shay claimed that Principal Shaver was “harsh” and “curt”, and she refused to answer any of her questions. She only repeated that “she had been excluded.”
Jessica received another phone call regarding her son.
Mrs. Shaver called me on February 10, 2022, at 1:22 pm. School closes at 2:15. I was informed by Mrs. Shaver that my son was being given an “unexcused absent” for the day. This was confusing to me so I tried to rebut it. I explained to her that he wasn’t absent, as he had been attending school since 8:15 am. Next, she spoke out in a shocking manner. Her next words were shocking. She said that my son was being “excluded” from his classroom due to safety and health concerns.
Shay claims that Principal Shaver didn’t disclose any details about the enclosed children or the fact that they had been there since the morning of their arrival. The children were forced to spend six hours outside because of the excessive heat and wind advisory for Orange County on February 10.
Weather reports indicated that the high temperature was over 90 degrees and wind gusts were 40 miles an hour.
Jessica wrote her claim.
On the phone call, she failed to mention that my son (and a few other FRE student) had moved into the courtyard early in the morning. My son told me about it. He said that he was not allowed to leave the courtyard, except to use the toilet. He sat in a “cage” outside, and children walking through the courtyard were told by supervisors that they should not look at or speak to the children in the enclosure. They are “in trouble.” Mrs. Shaver also directed the adult supervisor to ensure that the children don’t have any fun.
Mrs. Shaver explained to the students protesting that this was their punishment for wearing a mask and that their actions had consequences.
Below is a picture of the outdoor area in which the children were kept.
The Gavel Project Foothill Ranch Elementary was used as an outside cage for non-mask-compliant children. Credit: Permission granted by the Gavel Project Saddleback Valley USD Claims.
Children chose to continue protesting against wearing masks and were sent to the cage where they will suffer from other indignities. Jessica and Shay lobbied for their children’s rights at the SVUSD, and the school board, and received no response or redress. The SVUSD conducted an independent investigation but the investigator was hostile according to Jessica and Shay. The parents’ claims were not supported by the SVUSD in the end.
The Orange Country District Attorney’s Office sent Shay and Jessica letters accusing them of neglect because their children were absent without explanation and considered truant. Letters were also sent to other parents whose children were involved in this protest.
The letter requested that parents meet with the deputy district attorney to discuss the reasons their child was not attending school. The letter stated that the parents were not fulfilling their obligations to their children and threatened to bring criminal charges against them.
Jessica spoke out against the negative connotations that were placed on her parenting role in an interview.
“I mean, I know deep down that I’m a good parent. However, exactly what you are saying isn’t how we’re being presented.”
Shay was also full of anger at the situation.
“They took our education away from our children and not us. They went to school every day. They decided to mark them absent and get instruction from them. We should not have to be responsible for them”.
Henderson explained that the California health statutes support both the SVUSD parents and another Los Angeles County case that Tracy Henderson, a pro-bono attorney, has on her plate.
Additional schools do not have the power or obligation to enforce health orders, even if there were a legal mandate. California law does not allow health officers to enforce or issue orders except those that are required by California statute. Example: Health and Safety Code SS120140.
Even if the school summoned the safety and health officer to visit campus to treat a child who refuses to mask, the officer, who is police-authorized, could not do anything. In these cases, the only authority that the school has is to send the sick child home. That’s it.
The principal and teachers violated Civil Code SS 52 because they claimed to be acting under the authority of others. They could face civil penalties, damages, and attorney fees.
Ryan Heath explained how a favorable decision in these cases could set a precedent that could further undermine the ability of unelected bureaucrats to impose unconstitutional orders in the future.
This is particularly important as public actors, such as Leana Wen MD, former CNN Contributor, are changing their views on the utility of forced masking relative to harm.
Because The Gavel Project specifically files First Amendment claims based upon free speech (removing a mask in defiance of expressive conduct protected by speech) favorable outcomes could lead to the elimination of COVID-19 “mandates”, which are objectively ridiculous, for school children.
