On July 23, 2021, the Ninth Circuit Court of Appeals rejected a legal challenge to California’s decision to close public schools to in-person instruction and provide online distance learning in response to the COVID-19 pandemic.
However, the court reversed the lower court’s decision toward private schools, finding that the state’s orders closing private schools infringed on the right of parents to choose their children’s schools.
The case, Brach v. Newsom, is a challenge by public and private school students and parents to various orders that California issued during the COVID-19 pandemic that closed school campuses to in-person instruction. The plaintiffs, 14 parents and one student, originally filed the lawsuit challenging California’s public health orders on July 21, 2020. After receiving briefing, the district court granted summary judgment to California on Dec. 1, 2020, effectively dismissing the case. The plaintiffs appealed the decision to the Ninth Circuit.
The Ninth Circuit held that the district court properly rejected the challenge against California’s decision to temporarily provide public education through online distance learning. The court noted that federal courts have repeatedly declined to recognize a federal constitutional right to have the state provide an education in any particular manner and, as a result, the state’s orders need only be “rationally related” to stopping the pandemic in order for the court to uphold the orders. This is a relatively low bar, and the court found that state’s orders were clearly related to stopping the pandemic.
In contrast, the Ninth Circuit held that the state’s forced closure of private schools implicates a separate fundamental right — the right of parents to be free of government interference in the choice of a private educational forum. This fundamental right stems from Supreme Court cases in the 1920s, Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510 (1925). Because California’s ban curtailed a fundamental right for private school students, the prohibition could be upheld only if it withstands “strict scrutiny,” a higher standard than “rationally related” that requires the state’s action to be narrowly tailored to further a compelling state interest. The court noted that while stemming the spread of COVID-19 is unquestionably a compelling state interest, California’s broad and lengthy closure of private schools did not satisfy the narrow-tailoring requirement as a matter of law.
California’s public schools will not experience a change in the status quo as a result of the Ninth Circuit’s decision, and even for private schools, this latest decision in Brach v. Newsom may not have much practical impact in the next school year, as California’s existing guidance encourages in-person instruction for all schools in the next school year. However, to avoid any confusion about the outcome of the case, we have provided the above analysis.
The Ninth Circuit’s decision in Brach v. Newsom is available here.