Even as the number of COVID-19 cases in California surges past 400,000 and the death toll tops 7,000, a group of parents sued the state Tuesday demanding the state reopen schools for business as usual this fall.

Schools across the state have been closed since March following California Governor Gavin Newsom’s stay-at-home order. Last week, Newsom said schools in the state’s hardest-hit counties will remain closed until the virus is under control.

The Trump administration meanwhile has pushed for schools to reopen across the country this fall despite a record-breaking infection rate and hospitalizations in the last few months when the virus surged after Memorial Day.

But the parents suing the state of California, Governor Newsom, state Attorney General Xavier Becerra and other officials claim there are thousands of open-licensed child care centers across the state and virtual learning is no replacement for in-class lessons.

“Not providing education for America’s children is not a choice,” the parents say in their 35-page complaint, filed in the Central District of California.

They cite encouragement from the U.S. Department of Education to reopen schools, Education Secretary Betsy Devos, the analysis organization Center on Reinventing Public Education and a June 29 statement from the American Academy of Pediatrics which “strongly” advocated for students to be physically present in school this fall, because of the deficiencies from remote learning.

That organization’s talking point was picked up by the Trump administration to push for students to return to the classroom, but this month the group walked backed its previous statement.

“Science should drive decision-making on safely reopening schools. Public health agencies must make recommendations based on evidence, not politics,” the organization said.

The parents claim there is a “digital divide” in homes of “African American and Hispanic parents” and pointed to the lack of reliable computer or tablet devices in the home. They claim special education students are at a disadvantage when it comes to distance learning.

“Many parents of special needs children in California have reported that their children received none, or nearly none, of the individualized instruction guaranteed by law,” the parents say in their complaint. “Frustrated instructors simply gave up when faced with technology challenges, while others didn’t try at all, and many school districts made zero provision for delivering these federally mandated services to children, despite the federal funding provided to the state for them.”

The parents claim their children’s sleep schedules are impacted by not going to school. Another parent, Erica Sephton from Riverside County, says her daughter who is about to enter transitional kindergarten needs social interaction with fellow classmates.

“Sephton is aware of the risks of Covid-19 and believes that these minor risks for children do not outweigh the harm that her daughter is suffering by being deprived of her in-person education,” according to the complaint.

The complaint details efforts taken by one Los Angeles County school district but claim Newsom’s continued restrictions on schools hurts students.

“Governor Newsom’s inexplicable restrictions on school reopening is not based in scientific facts, and is completely arbitrary especially in light of the fact that California allows all of the functional components of schools allowed in camps and childcare,” the plaintiffs say in their complaint.

They claim violation of the Equal Protection Clause for arbitrary school closures, violation of due process, civil rights act of 1964 and federal disability rights. They’re seeking a court injunction against the state order to reopen schools.

The plaintiffs are represented by Harmeet Dhillon from the Dhillon Law Group.

Earlier this month, the Los Angeles Unified School District, the largest district in California, said its students would not return to the classroom this fall.

LAUSD Superintendent Austin Beutner said in a statement: “While Dorothy in ‘The Wizard of Oz’ might have said ‘Tap your heels together three times and say, “There’s no place like home,” and you’ll be there,’ actually returning to schools is not so simple. The federal government could help by providing the funding schools need to make it safe and appropriate for students and staff to return. The cost of testing all at schools, maybe $15 billion, will help make it safer for all 50 million students and their teachers in public schools across the country.”

— By Nathan Solis, CNS