Legal-Medical Opinion On Possible Changes to 2020-2021 School Year due to COVID

by Attorney Leigh Dundas

From the Biblioteca Pleyades website

I write today to highlight certain factors that will hopefully serve to inform what are likely ongoing embryonic conversations at the District level, relating to COVID and the 2020-21 school year – and further – to urge a particular path of restraint during such conversations based on abundant scientific, medical, neuro-cognitive and legal considerations which have now emerged.

At the beginning of this letter, I want to acknowledge that it is quite obvious that there is a virus, which can be sometimes fatal, particularly to certain demographics.

That said, there are also a federal and state constitution – which have been to some degree overlooked by certain states in their rush to contain the virus – as well as data in the form of hard math and hard science, which is now emerging in the context of COVID, and which bears review.

Math on COVID was Wrong

The study that precipitated the lockdown of more than 95% of America’s population (and indeed, the planet’s population) was authored by Neil Ferguson, out of the UK. It predicted deaths in the millions.

This alarming conclusion was taken into account by leaders of most nations, and acted on accordingly. America acted by quarantining – not the sick – but the approximately 311 million Americans who were not sick, and putting them under the functional equivalent of house arrest, for an indefinite period of time.

Interestingly, after a mere one day of himself being under lockdown in the UK, the study’s author walked back his math a shocking ninety-six percent (96%): his revision of deaths in his own country went from a predicted 500,000 down to 20,000.

At this juncture, allow me to point out the obvious, using an analogy involving my daughter:

if my daughter Katya routinely said the answer to a math problem this year was 100, when it was indeed only 4 – and Katya continued to get her math problems wrong by 96% – she would receive a failing grade in math from Foothill High.

And rightly so:

with such incompetence in basic arithmetic reflected on her transcript, I would hope that she not be hired by anyone, anywhere, in any serious job that required basic math, as such degree of error – in engineering, statistics, or any job – would have fatal consequences (imagine if the degree of slope in a freeway overpass were 96% wrong).

Why Neil Ferguson‘s model was adopted in the first place is curious, as this was not his first such major error:

witness Ferguson’s 2001 model of mad cow disease – which predicted horrible fatalities including up to 150,000 deaths in England – which was subsequently deemed “not fit for purpose” when in fact only 177 people died (and that’s through 2020). ^[1]

Indeed, what current actual data evinces is that the mortality rate is nowhere near the initial projections, as concluded by a study out of Stanford on Sunday, followed by one out of USC yesterday.

The Stanford study, led by Professor Eran Bendavid,

“concluded that the mortality rate in Santa Clara County is between 0.12% and 0.2%.”

Less than 1% fatal.

And 50 to 85 times more people had been infected than originally thought in northern California (2.5%-4.2%), while in southern California – where most flights from Asia land into LAX – the infection rate was found to range from 2.8%-5.6% (which experts believe is due to earlier-than-thought exposure to COVID dating back to last Fall).

ZERO Children Dying

In addition to having a LESS THAN ONE PERCENT fatality rate overall, the fatality rate for children – who appear to be essentially immune (likely due to their contraction of endless common colds most of which are from Corona virus strains) – is ZERO.

You read that right:

worldwide, ZERO children under 10 have died.

And in the US? Zero individual under age 20 have died. ^[3]

Yet further, the number of deaths for all people in the US to date is proving this virus to be no more deadly than a bad flu.[4]

And that is even with the number of deaths being radically over-inflated due to the CDC’s order that all deaths be counted as COVID deaths – including e.g., a man who dies by crashing his motorcycle or heart attack, if he tests positive for COVID (even though he was not SICK from COVID at the time of his death, and the actual proximal cause of his fatal injury was vehicular fatality or heart attack).

Sweden is actually doing the math correctly: counting people who die with COVID separately from people who die from COVID.

But the U.S. to date is refusing to do correct math, and thus it must be noted that even the math showing COVID to be no worse than the flu is likely still artificial. COVID may well be far less fatal than the flu (and we know it is less fatal than SARS or MERS). ^[5]
Finally, it should be noted that countries and states who’ve gone into lockdown actually have no better outcomes, and in some cases, MORE fatalities than those who did not employ lockdown. ^[6]

Frankly, this is not shocking: in the 1918 flu pandemic, it was rapidly discovered that outdoor hospitals with no roofs – where patients were exposed to sunlight and fresh air – had lower death rates and better recovery rates (due to the incontrovertible science that shows better immune response with Vitamin D, and of course, the ability to breathe non-contaminated air that is not re-circulating with a heavy virus load). ^[7]

Governors are not Kings

Now that we have reviewed the math, I want to turn to a governmental analysis, followed by a review of legal points.

Governors are not kings. While they can issue orders, those orders are not always constitutional.

Courts – which are currently closed state-wide – are the final arbiter of whether any decree, order, or law is actually lawful.

As educators, I doubt I have to point out here the rather obvious fact that we have three branches of government, precisely to avoid the end that is occurring right now: the three branches are to act as a system of checks and balances on each other.

Currently, in California and most states, only one branch of government is in session. This is a set-up for abuse, and something our forefathers took great pains to avoid.

There is a name for countries whose countries function with only one branch in session: they are called DICTATORSHIPS.

Put simply: due to the current closure of the courts, many executive branches are accomplishing by fiat what would never be allowed in any other setting, and which decrees are likely exceedingly unconstitutional.

Constitutional Rights

And turning to the legal analysis:

governments may, in times of crises, curtail First Amendment rights, as well as other rights guaranteed by our Constitution. Phrased differently, our right to speech, to assemble, to pray, our freedom of movement (a derivative First Amendment right) may be encroached upon and are not absolute.

That said, any order that burdens a First Amendment right must pass strict scrutiny: it must be “narrowly tailored” to achieving a “compelling state interest.”

Applying this standard in reverse to the facts at hand, safeguarding public health is likely going to be considered a compelling state interest – although that prong is harder to meet with every passing day that yields a new study showing COVID to be no more fatal than the flu.

But more to the point, an order that indefinitely prevents normal assembly or speech – as many governors’ orders do – is never going to be able to be shown to be “narrowly tailored” to addressing the problem of the virus.

An example of a “narrowly tailored” solution designed to achieving virus containment and public health concerns would be confining sick people to home or hospital – which is a true quarantine – as opposed to locking down 95% of Americans who are neither sick nor carriers and putting us under house arrest for an indefinite period of time.

Moreover, what may – at one very discrete point in time – be a prudent action that errs on the side of caution (ordering people to stay home during the first 4-6 weeks of the virus) – and which many would concede appears narrowly enough tailored at the front side – will NOT continue to be deemed narrowly tailored if said solution is applied indefinitely.

Stated differently: house arrest to control a pandemic spread for one month seems narrowly tailored and justified, but house arrest forever – particularly when the facts show that the virus is NOT a pandemic and is no more fatal than the annual flu – cannot be justified in a free society, and would never meet the legal standard. ^[8]

Lawsuits Coming and the State will Lose

On that front:

the State is about to be hit with a deluge of lawsuits, as both the existing stay-at-home order is unconstitutional (not just from a First Amendment standpoint, but from a 13th Amendment/slavery standpoint, and from a Takings Clause standpoint re small businesses), as are the verbalized but not-yet-written statements about California’s future (should they be enacted).

These lawsuits the State will lose: it is not constitutional to continue house arrest indefinitely, nor to require masks on healthy people at all (let alone indefinitely), nor to prohibit adults or children from gathering normally at church, work, sports, or school for 1-2 years.

Moreover, the Department of Justice has clearly and correctly indicated it will be intervening as a party of interest in such federal court lawsuits, and siding with the people and against the State.

To wit, as reported by both NPR and Bloomberg ^[9] yesterday:

Attorney General Barr called some current stay-at-home orders “burdens on civil liberties” and said that if they continued and lawsuits were brought, his department would side against the state.

“The idea that you have to stay in your house is disturbingly close to house arrest. I’m not saying it wasn’t justified.

I’m not saying in some places it might still be justified. But it’s very onerous, as is shutting down your livelihood,” Barr said.

***

“These are very, very burdensome impingements on liberty.

And we adopted them, we have to remember, for the limited purpose of slowing down the spread, that is bending the curve. We didn’t adopt them as the comprehensive way of dealing with this disease.”

“You can’t just keep on feeding the patient chemotherapy and say ‘Well, we’re killing the cancer, because we were getting to the point where we’re killing the patient,'” Barr said.

“Now is the time that we have to start looking ahead and adjusting to more targeted therapies.”

Social Distancing is Euphemism that Hides a More Pernicious Truth

On the point of school alterations, let me preface the discussion with a scientific review of social distancing.

Social distancing is euphemism which is not only inaccurate, but like many euphemisms, hides a more pernicious truth.

Social distancing is, in fact, social isolation. One can argue that distance is not the same as isolation, and only becomes isolation after a certain yardstick of measurement has been reached between persons, but the reality is that such is not the case.

If you doubt this, take a walk down the aisle at Vons, and try to initiate a smile or simple “hello” to someone six feet away.

Though this is theoretically possible, as voices and visual cues carry across a distance of six feet, nine out of ten people will not respond (and yes, I conducted this little test just last week – I studied psych/soc before becoming an attorney).

Medical journals agree:

social distance is social isolation. And social isolation is thus the term I will use for the duration.

Social Isolation is a Human Rights Violation on par with Torture and Other War Crimes

To lead with the conclusion: social isolation is a human rights violation – which is on par with torture and other war crimes.

Indeed, social isolation is the primary protocol deployed against enemies in times of war, regardless of time period or country in question.

This is due in large part to the fact that it is so successful in psychologically destroying the individual, without need of more bloody and difficult physical interventions.

The studies of social isolation against enemies of state began in the 1950’s and 1960’s by the CIA:

“In 1960, one of the agency’s most active contractors, Lawrence Hinkle of Cornell, confirmed the significance of Hebb’s research for the CIA mind-control effort. Through a comprehensive review … ‘for the purposes of intelligence,’ Hinkle found Hebb’s work [on social isolation], in light of the neurological literature, the most promising of all known techniques.”

To wit:

It has long been the custom of captors, police, and inquisitors, to isolate their prisoners. But which of these methods, Hinkle asked, is most effective? All the standard interrogation techniques have varying… impacts on the brain’s functioning… [But] of all the possible techniques, isolation is the ideal way of “breaking down” a prisoner…

Hebb’s work found that,

“the effect of isolation on the brain function of the prisoner is much like that which occurs if he is beaten, starved, or deprived of sleep.”