Ninth Circuit: Gavin Newsom’s California Violated Private School Parents’ Rights with Shutdown

The U.S. Court of Appeals for the Ninth Circuit ruled Friday that the State of California violated the constitutional rights of parents whose children were at private schools when Gov. Gavin Newsom’s administration forced those schools to shut down during the height of the coronavirus pandemic last year.

A 2-1 majority court found that while the state government had authority to close public schools, that did not include private schools.

The plaintiffs included parents from both public and private schools, who challenged Newsom’s shutdown rules. They were represented by the conservative Center for American Liberty.

Judge Daniel P. Collins wrote:

Both the Supreme Court and this court have repeatedly declined to recognize a federal constitutional right to have the State affirmatively provide an education in any particular manner, and Plaintiffs have not made a sufficient showing that we can or should recognize such a right in this case.

We reach a different conclusion, however, as to the State’s interference in the in-person provision of private education to the children of five of the Plaintiffs in this case. California’s forced closure of their private schools implicates a right that has long been considered fundamental under the applicable caselaw—the right of parents to control their children’s education and to choose their children’s educational forum. Because California’s ban on in-person schooling abridges a fundamental liberty of these five Plaintiffs that is protected by the Due Process Clause, that prohibition can be upheld only if it withstands strict scrutiny. Given the State closure order’s lack of narrow tailoring, we cannot say that, as a matter of law, it survives such scrutiny.

In his dissent, Judge Andrew D. Hurwitz wrote that the plaintiff’s complaint was moot: “The State has made substantial progress in battling the pandemic, largely because of the introduction of effective and widely available vaccines. Given that progress, the challenged orders no longer prevent any of Plaintiffs’ schools from providing in-person instruction.”

Read the full decision here.

The state currently expects most schools to reopen for full-time, in-person learning in the fall, but the recent surge in coronavirus cases in the state has led to renewed concerns.

The case is Brach v. Newsom, Central District of California, No. 20-56291.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.