COVID Closures of Private Schools May Have Been Unconstitutional
From Brach v. Newsom, decided yesterday by the Ninth Circuit (in an opinion by Judge Daniel Collins joined by Sixth Circuit Judge Eugene Siler):
[W]e hold that the district court properly rejected the substantive due process claims of those Plaintiffs who challenge California’s decision to temporarily provide public education in an almost exclusively online format. 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…. [We therefore] remand for further consideration in light of the conclusion that the State’s actions implicate a fundamental right of those Plaintiffs….
As we have previously observed, the Supreme Court has long held that “the right of parents to make decisions concerning the care, custody, and control of their children is a fundamental liberty interest protected by the Due Process Clause,” and that this right includes “the right of parents to be free from state interference with their choice of the educational forum itself.” [This right rests on Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), though it has been repeatedly reaffirmed since then. -EV]
The State does not dispute that Meyer and Pierce recognized a fundamental right of parents concerning the education of their children. Nonetheless, noting that Pierce invalidated an Oregon statute that forbade parents from sending their minor children to any school other than a public school, California insists that the right recognized in Pierce consists only of the “right to decide where to send their children to school.” Because California has not “prevent[ed] the Parents-Appellants from enrolling their children in private schools,” the State argues, it has not in any respect infringed the Meyer-Pierce right. Rather, the State asserts that all it has done is to alter the “mode of instruction” that must be followed at both public and private schools, and it contends that Meyer and Pierce do not limit its ability to adopt such universal rules. These arguments fail.
The State’s narrow reading of the Meyer-Pierce right and the State’s purported carve-out for generally applicable regulations of all schools are both refuted by Meyer itself. There, the Supreme Court confronted a generally applicable Nebraska statute stating that “‘[n]o person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language.'” The only exception under the statute was that foreign languages “‘may be taught as languages,'” but only after the eighth grade. Id. (citation omitted). The Nebraska statute thus had both features that California says are enough to evade any constitutional scrutiny: it did not interfere with the decision to enroll in a private school, and it imposed a restriction that was generally applicable to both private and public schools. Nonetheless, the Supreme Court struck down the Nebraska statute, concluding that it impermissibly “attempted materially to interfere … with the power of parents to control the education of their own.”
The State’s definition of the right is thus unquestionably too narrow. But the Supreme Court has also cautioned against an overbroad reading of the Meyer-Pierce right. See Runyon v. McCrary (1976) (stating that Pierce “lent ‘no support to the contention that parents may replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society'”). In discerning the contours of that right, and whether California’s restrictions implicate it, we must be guided by the Supreme Court’s insistence on a “‘careful description’ of the asserted fundamental liberty interest,” which ordinarily “must be defined in a most circumscribed manner, with central reference to specific historical practices.” Here, a consideration of historical practice and tradition confirms that California has deprived the private-school Plaintiffs of a core aspect of the Meyer-Pierce right.
As historically understood, the Meyer-Pierce right necessarily embraced a right to choose in-person private-school instruction, because—as the State conceded at oral argument—such instruction was until recently the only feasible means of providing education to children. Thus, prior to the advent of the internet and associated technology, it would never have been imagined that the Meyer-Pierce right did not include the right to choose in-person private instruction. We are
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