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The owners of Aspen Leaf Preschools in San Diego were always clear: They did not require students at any of their facilities to wear masks, despite a statewide mask mandate that existed at the time.
State regulators knew this. They had already seen children not masking and the preschools’ owners never tried to hide their policy.
Even still, regulators simultaneously “raided,” as some parents and teachers described it, three Aspen Leaf facilities in mid-January and separated children from their teachers to interview them about masks.
Some of the children were as young as one years old – too young developmentally to even recount the experience to their parents.
The story, first reported by Voice of San Diego, was catnip to conservative media outlets – another example of Californians taking pandemic precautions to extremes. FOX News, the Daily Mail and many others spread the news around the globe.
Recently, state officials quietly validated the notion that perhaps they went too far. They dropped each of the citations levied against the owners of Aspen Leaf.
Howard Wu, who owns Aspen Leaf with his wife Bridget, said he was unsurprised and relieved, but also frustrated.
“No one was held accountable,” Wu said. “There was no acknowledgement that they did something wrong. They just made the problem go away. We’re still really frustrated about that.”
After this story published, state officials responded to an earlier request for comment, but shed little light on the dismissals. They declined to answer specific questions about why the charges were dismissed.
“The Aspen Leaf licensee submitted written appeals to [the child care licensing department] who ultimately determined that it would be appropriate to dismiss the notices of deficiency,” wrote Theresa Mier, a spokeswoman for the state Department of Social Services.
After the storm of media and angry parents, regulators with the state’s child care licensing department stayed quiet.
They met with Wu but provided no logic for separating and interviewing children, Wu said. Parents also demanded answers.
“Can anyone on staff explain THE WHY (emphasis not mine) behind why young children needed to be interviewed when the mask policy is on Aspen Leaf’s website?” one parent wrote to regulators.
In an email to parents, state officials were cagey about the logic.
Regulators “determined that the interviews were conducted in an appropriate manner and were a necessary component of the required complaint investigation,” wrote Kevin Gaines, deputy director of child care licensing, as Voice previously reported.
To alleviate parents’ concerns that their children were interviewed without familiar adults present, Gaines assured them children were “within line of sight” of their teachers.
Wu explained that some children were taken into a larger room which had a glass window at the top of the door. At another facility, they were taken outside. In the sense that there was glass between the children and their teachers, yes, this might have been technically true, Wu acknowledged.
Whether children could actually see their teachers or were comforted by this line of sight is another question, he said.
It’s also possible the dismissal of the citations against Aspen Leaf are not an acknowledgement of overkill.
Even before the citations were ever issued, Wu, who is also a lawyer, disputed the child care licensing department’s authority to enforce the mask mandate – basically, because of a technicality.
Wu argued that in order to enforce a regulation, state law requires a state agency to officially issue a regulation. Child care regulators, who work under the Department of Social Services, never did that, he said. (State public health officials had created a mask mandate for preschools, that was true, Wu acknowledged. But then the relevant regulators never created a regulation to back it up. Thus, none was enforceable, he argued.)
After the state issued its citations, Wu brought his case to court. But it never actually went to trial. Instead, licensing officials dropped the case before the question could be answered.
For what it’s worth, Wu said, he’s not an anti-masker or an anti-vaxxer. His whole family wore masks when they were out in public during the pandemic. He simply felt the rules for preschools were ludicrous.
The pandemic rules for preschoolers indicated they did not need to wear masks while they were eating or sleeping. For preschoolers, these activities take up a large part of the day. So, in other words, they were going to expose each other to their airborne germs equally, with or without a mask mandate.
On top of that, Wu had seen research that the masks could be developmentally detrimental to young children.
Once he realized the technicality, he saw his out for not enforcing the rule.
But Wu finds cold comfort in the dismissal. He believes child-care licensing officials are frequently over-aggressive in their regulation of preschools. Very few other owners are also lawyers. They don’t, he said, have the time or legal training to pushback against the regulators.
This story has been updated with a comment from state officials.