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On April 12, Scotts Valley Unified School District Superintendent Tanya Krause shared, in a message to the community, her “surprise” that President Joe Biden had terminated the Covid-19 emergency a month early.

That meant the District would now discontinue free in-school coronavirus testing, she announced, suggesting parents and guardians contact their insurance provider to learn about their policy coverage.

Meanwhile, a lawsuit that emerged from Brook Knoll Elementary School during the pandemic continues to wind its way through the Santa Cruz County Superior Court system.

According to the Statement of Facts, on Jan. 31, 2022, a first-grade student wasn’t allowed to attend class with his peers because he didn’t follow the school’s Covid-19 rules, and was instead taught by a substitute teacher in an unused classroom, which claims the situation played out similarly on Feb. 1 and 2 (though he was allowed to return to class on Feb. 3).

A few days later, on Feb. 15, 2022, the boy’s mom called the office saying her son would be late because of an appointment. He returned carrying a sign that said “END THIS NONSENSE” (emphasis in original), which the teacher snatched out of his hands before dispatching him to the school counselor, per court papers.

He refused to wear a mask in the classroom in protest on Feb. 22 and continued to refuse wearing a mask daily. This led to him being repeatedly sent away—either to the principal’s office or a classroom used for storage.

The complaint counts nine days in March 2022 when the boy refused to wear a mask in class. The 7-year-old even told a worker on yard duty that his “freedom does not end where your fear starts.”

Judge Timothy Volkmann ruled Feb. 1, 2023, against the family’s claims of false imprisonment. He struck down the attempt to claim Krause, Brook Knoll Elementary Principal Joshua Wahl and Meghann Gelter, a Brook Knoll teacher, had intentionally inflicted emotional distress on the student by making him run laps, sending him to the nurse, grabbing signs out of his hands and separating him from other pupils.

Volkmann sided with the District on another point, agreeing that the family had not made a strong enough case that the boy’s civil rights had been violated by Covid-19 mitigation measures.

In his ruling—which did not erase negligence claims—he left the door open to the plaintiff recouping attorneys’ fees if they can better state a claim under the Bane Act, a law brought in to protect people from having their constitutional rights violated by force or threat of violence. But he threw out some of the family’s requests about forcing the District’s hand when it comes to implementing pandemic procedures.

“Since there is no current mask mandate in place for students at Brook Knoll Elementary, there is not any present controversy that the court needs to adjudicate,” Volkmann wrote.

He also threw out their attempt to collect punitive damages, noting that under Government Code Section 818, even if the District was found guilty of oppression, fraud or malice, public entities are protected against this sort of remedy. However, the judge said the claims could all be brought back if restated in an amended filing by Feb. 6.

The First Amended Complaint, officially filed Feb. 7, restated false imprisonment, negligence, intentional infliction of emotional distress and civil rights violations. It also went into detail about how the boy, now in second grade, was affected by how things played out last year.

The plaintiff’s lawyers say that, on Jan. 12, 2022, the boy showed the school nurse a Centers for Disease Control document reporting that handwashing is more effective than hand sanitizer and was allowed to wash his hands as a one-time exception.

It also notes that on Jan. 31 the boy was selected to be Student of the Week—meaning he would get to highlight his family, select activities and sit in a special chair. Instead, because of his protest, he was sent to Classroom 34—the storage area—and “was not allowed to come in contact with his fellow students, speak with them, or participate in school activities with them,” the court papers state.

“He missed his opportunity to be Student of the Week,” the amended complaint reads, describing how the classroom was filled with stacked desks and chairs, cleaning and art supplies, and a large bucket of puppets. “He felt sad, alone, and very upset.”

The plaintiffs argue this is a case about a boy trying to “exercise his right to free speech and to attend school free from discrimination and harassment,” while the District says it’s a about a student who “refused to comply with District-issued policies on vaccination, testing, and mask-wearing, and crusaded against such policies through a series of acts and omissions.”

The boy’s lawyers attached a CDC document titled “Show Me the Science — When & How to Use Hand Sanitizer in Community Settings,” which reads, “Alcohol-based hand sanitizers can quickly reduce the number of microbes on hands in some situations, but sanitizers do not eliminate all types of germs,” and, “Soap and water are more effective than hand sanitizers at removing certain kinds of germs, like Cryptosporidium, norovirus, and Clostridium difficile.”

They also attached what looks like a stick figure comic drawn by the boy. It, they said, depicts “his teacher hitting him over the head with a mallet because he wouldn’t wear a mask.”

SVUSD lawyers say the lawsuit might have to be settled in a four-day trial.

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Drew Penner is an award-winning Canadian journalist whose reporting has appeared in the Globe and Mail, Good Times Santa Cruz, Los Angeles Times, Scotts Valley Press Banner, San Diego Union-Tribune, KCRW and the Vancouver Sun. Please send your Los Gatos and Santa Cruz County news tips to [email protected].

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