Letter: ‘The (Vancouver School) district ignored or broke numerous rules to enforce the governor’s emergency mask rule’

Brush Prairie resident Bill Eling outlines examples of Vancouver Public Schools’ ‘missteps’ in a lawsuit against a parent of a Skyview High School student

Editor’s note: Opinions expressed in this letter to the editor are those of the author alone and do not reflect the editorial position of ClarkCountyToday.com.

On the day following the 2021 Labor Day holiday, Vancouver Public School District [VPS] filed a lawsuit against Megan Gabriel, a Skyview student’s mother. VPS wanted to stop Gabriel from organizing public demonstrations at Skyview High School. Gabriel hoped demonstrations would bring public attention to the fact VPS would not allow her daughter to attend school without wearing a face mask (even when the student’s doctor had said that wearing a face mask would be harmful to her). Rather than find another way to solve the problem and ignoring that over the Labor Day weekend Gabriel asked people not to demonstrate, Vancouver Public Schools chose to sue the mother.

Brush Prairie resident Bill Eling outlines examples of Vancouver Public Schools’ ‘missteps’ in a lawsuit against a parent of a Skyview High School student. — Bill Eling

While it is debatable whether filing a lawsuit was necessary and appropriate, it is not debatable that VPS ignored state law and court rules. Oblivious to the irony, the district ignored or broke numerous rules to enforce the governor’s emergency mask rule. Although it might be easier to list the laws and rules the district didn’t break, what follows are examples of the district’s missteps:

Based on publicly available meeting notices and minutes, the VPS Board never met to approve the Gabriel lawsuit prior to its’ attorneys’ trip to court, even though its own rules require it.
If you file a lawsuit, the law requires you to serve the Defendant. Based on documents VPS filed in court and public records responses, VPS never served or even tried to serve the lawsuit on Gabriel. The failure to have a process server serve the papers on Gabriel denied the Court the legal authority to issue a final injunction.
Not only did VPS fail to serve the actual lawsuit, VPS never attempted to notify Gabriel of VPS’ next step: that VPS attorneys were going to Court ex parte (i.e., only VPS present) to get a pre-trial/pre-hearing Order against her. Civil Rule 65 required VPS to attempt to give her notice and file a written certificate describing its attempts to do so. There is no certificate.
The law required VPS to show it had no alternative but to ask for an injunction. VPS failed to do so. VPS didn’t explain why state criminal laws that prohibit disturbing school activities, refusing to leave school property, and similar conduct aren’t an adequate remedy, its’ legal burden. The applicable statutes in the education title of the Revised Code of Washington are RCW 28A.635.020, RCW 28A.635.030, RCW 28A.635.090 and RCW 28A.635.100.
Even though Washington law requires it, the VPS court filings do not explain why the injunction needed to be district wide and not limited to the Skyview campus. Skyview was the sole location of the demonstrations and Ms. Gabriel’s daughter was not enrolled in any other Vancouver school.
VPS court filings do not explain why it needed to enjoin demonstrations one mile from every school in the district. In contrast, courts reviewing abortion clinic injunctions find that a 20- to 100-foot bubble from entrance and exit points constitutes a reasonable distance.
Public records show that the day before VPS went to Court, Ms. Gabriel had agreed to call off demonstrations and to ask people not to go to Skyview. If VPS had told the judge this fact (or if Gabriel knew VPS was at Court and had a chance to speak), there is a good chance the judge would have denied the injunction.
VPS filed one affidavit with the Court, a statement from the Skyview principal long on conclusions but short on details needed to make the legal case for an injunction. In addition, the district’s statements to parents and to the Court are not easily reconciled. The Skyview principal’s affidavit, handed to the Judge on September 7, states that during the September 3 “…school day, rally attendees continued protests that were disruptive to classroom instruction.” But on September 3, four days earlier, the principal sent a letter to parents painting a different picture. In the letter to parents, the principal states the September 3 lockdown “lasted about an hour, allowed us to continue instruction for students safely inside the school.” Gaslighting the parents or misleading the Court? Neither is acceptable.
In addition to failing to serve the lawsuit, VPS didn’t bother to serve a copy of the injunction Order on Ms. Gabriel as required by law. In fact, public records show that in communicating with Gabriel after the Order was issued, the VPS superintendent chose to describe the lawsuit euphemistically. The superintendent doesn’t tell Gabriel the district sued her but that it had “presented information to Clark County Superior Court” implying it had left some papers at the courthouse and the Court called VPS to give them the news. (“I also wanted to make you aware that the district presented information to Clark County Superior Court about protests and our ability to ensure student and staff safety. The Court reviewed the situation and notified us today that they [sic] granted an injunction to cease and desist all future rallies.”) Not exactly an honest description of what happened.
Even though the law requires it, VPS never set the matter for hearing or for trial. Gabriel never got her day in Court. The Court only heard what VPS wanted the Court to hear. VPS never had to defend its position.
In its Petition, VPS asked for an injunction that enjoined “all rallies, protests and gatherings related to masks civil disobedience….” On its face, the requested relief was illegal and unconstitutional. Under clear state and federal precedent, orders restricting the content of speech and not “content neutral” are unconstitutional. Such orders constitute an illegal prior restraint on free speech.
Even though VPS’ Petition asked for a content-specific Order, it didn’t get one. The Order the Judge signed does not include the phrase “related to masks civil disobedience.” Still the pre-trial Order is problematic. The Order prohibited “[r]allies, protests or gatherings, on or near school premises, that disrupt educational services …” [emphasis added]. Gatherings were permitted so long as a gathering did not disrupt educational services. But neither the Order nor VPS’ court filings describe what “disrupts” educational services. How would people know when they have disrupted educational services and violated the Order?

VPS never had to explain under cross-examination how a gathering a half-mile away from a school could disrupt classroom instruction. Obviously, “disruption” is a flimsy standard. For example, the district has no explanation why demonstrations which took place subsequent to the Order, pitting demonstrators from both sides of the issue, do not “disrupt educational services.” In apparent violation of the Court Order, these demonstrators were on the same sidewalks as the demonstrators on September 2 and September 3. A cynic would believe there was no disruption to educational services because half the demonstrators were on VPS’ “side.”
Despite correspondence describing the lawsuit’s legal shortcomings, and suggesting VPS cure its errors, VPS never attempted a cure. The district mantra always was that the lawsuit was “lawful, necessary and appropriate” and that VPS didn’t need to go back to Court to correct anything. VPS never served Gabriel, set a hearing, or reduced the scope of the injunction. VPS never identified the “John Doe” defendants. Note: the Order was never limited to the persons alleged to have disrupted school. Because it didn’t, everyone in the community was a defendant.
However, that stance changed. On September 6, 2022, I emailed a 30-page memo to VPS and filed it with the Court Clerk. The Memo cites the case law establishing that the failure to serve the lawsuit denied the Court jurisdiction, making VPS’ Order illegal. The memo included an explanation of why the case was not moot even though the mask mandate had ended.

On September 9, 2022, within 3 days of receiving my memo and faced with the embarrassing prospect that its conduct would be exposed in open court, VPS headed to Court without notice to present an ex parte motion dismissing the case as “moot.” Under Washington court decisions, a matter is not moot if a court can provide effective relief. Under Washington law, even if an injunction has expired, an award of exemplary damages for a wrongful and illegal injunction is available. Therefore, the case is not moot.
The filing of the memo created a legal obligation for VPS to provide me no less than 7 days’ notice of its Motion to Dismiss. No notice was received. Did VPS bother to tell the judge that VPS had received a memo adverse to its claim of mootness? Did VPS admit to the judge that it had not served a single Defendant and that as a result the Court never had jurisdiction to issue either the first Order or the last Order? The true ground for dismissal was lack of personal jurisdiction and failure to serve. But consistent with its’ conduct and lack of candor throughout, these primary errors were not listed in VPS’ written Motion.

Elected school officials in the state of Washington swear an oath to defend the Washington Constitution and to adhere to Washington law. Our legitimate expectation is that those officials will have the courage to honor that oath. Unfortunately, that courage is sometimes lacking. It is concerning when that lapse results in the violation of the constitutional rights of a community. It is concerning when there is no contrition for that failure and when there is no effort to correct obvious mistakes. It is also troubling that the same educational districts that claim to care about bullying will use the court system to bully parents who can’t compete with million-dollar school budgets to defend their children. The Vancouver Public Schools owe Ms. Gabriel and the community an apology and a pledge not to act outside of the law again.

Bill Eling
Brush Prairie