COVID Closures of Private Schools May Have Been Unconstitutional

So holds a Ninth Circuit panel (by a 2-1 vote), evaluating the California closure rules.

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 aware of no authority, for example, suggesting that Meyer-Pierce only protected the right of parents to choose correspondence schools for their children.

The technological advances of recent years raise the possibility that the Meyer-Pierce right might conceivably be deemed to have expanded to cover the ability to choose such additional modes of learning, just as the First Amendment right to speak in letters and in newspapers extends to emails and blogs. {No such question is presented here, because the private-school Plaintiffs all prefer in-person instruction. We therefore express no view as to whether a State could insist, over a parent's objection, that a child not attend an online school.}

But the fact that instruction can now also occur online provides no basis for concluding that the traditional, long-understood core of the right—the right to choose a private school offering in-person instruction—has now somehow been removed from that right. That would make no more sense than suggesting that the rise of the internet means that the right to free speech and a free press no longer includes the right to speak to a live audience or to publish in a physical newspaper. Put simply, the fact that technology now makes it possible to have a different type of learning does not mean that the right to choose long-established traditional forms of education has disappeared.

Precedent further confirms the common-sense notion that the Meyer-Pierce right includes the right to choose traditional in-person instruction at a private school. In Fields, we described the Meyer-Pierce right as "the right of parents to be free from state interference with their choice of the educational forum itself." It is hard to imagine a more direct interference with the "choice of the educational forum itself" than a prohibition upon in-person instruction in that chosen forum. And in Farrington v. Tokushige (9th Cir. 1926), we expressly noted that the Meyer-Pierce right protected in-person instruction in the course of addressing whether that right was infringed by the Territory of Hawaii's onerous regulation of foreign-language schools. In describing the contours of that right, we quoted Justice Harlan's dissenting opinion in Berea College v. Kentucky (1908), which emphasized the physically congregative aspect of private-school education:

"If pupils, of whatever race—certainly, if they be citizens—choose with the consent of their parents or voluntarily to sit together in a private institution of learning while receiving instruction which is not in its nature harmful or dangerous to the public, no government, whether federal or state, can legally forbid their coming together, or being together temporarily[,] for such an innocent purpose."

We then concluded that, under Meyer, Hawaii's burdensome restrictions on private foreign-language schools impermissibly interfered with "the right of a parent to educate his own child in his own way," and with the students'"right to be taught" in such schools. Tokushige thus confirms that, as traditionally understood, the Meyer-Pierce right includes the right to select a private school at which the students will "com[e] together," "be[] together temporarily," and "sit together in a private institution of learning while receiving instruction."

Here, of course, the State insists that, due to the pandemic, physical congregation of students can be dangerous, but that point goes to the question of whether the State's restrictions are justified under the appropriate level of scrutiny. It provides no basis for suggesting that the underlying Meyer-Pierce right does not even include the ability to choose in-person private-school instruction. It may be that the current once-in-a-century conditions present unique dangers that justify a limit on such in-person instruction, but such contingent circumstances do not establish that, for purposes of defining the Meyer-Pierce right, physical congregation of students involves "instruction which" is "in its nature harmful or dangerous to the public" and is therefore altogether outside of that right. The traditional and long-established nature of in-person private schooling refutes any such categorical suggestion.

That the Meyer-Pierce right encompasses parents' choice to send their children to in-person schools is further confirmed by the reasoning in Pierce, Meyer, and their progeny. In emphasizing the importance of parental control over the educational forum for their children, Pierce underscored the "right of parents to choose schools where their children will receive appropriate mental and religious training." As the declarations in this case amply illustrate, the private-school Plaintiffs here are all strongly of the view that distance learning is inimical to the "appropriate mental … training" that Plaintiffs want for their children, and that it deprives Plaintiffs' children of the physical and emotional connections they need during the formative years of their childhood. There can be no serious question that the restrictions at issue here thus "materially … interfere … with the power of parents to control the education of their own."

Accordingly, we conclude that the private-school Plaintiffs have established that the State's prohibition on in-person instruction deprives them of a core right that is constitutionally protected under Meyer and Pierce. The only remaining question is whether that deprivation is adequately justified under the appropriate level of scrutiny….

Meyer and Pierce were decided at a time in which the Supreme Court had not yet articulated the various levels of scrutiny that are familiar to us today. Moreover, the Supreme Court has yet to definitively decide what standard of review applies to infringements of the Meyer-Pierce rightBut the Court has repeatedly characterized the Meyer-Pierce right as being "fundamental," and we have held that "[g]overnmental actions that infringe upon a fundamental right receive strict scrutiny," At least where, as here, the challenged restriction wholly deprives the private-school Plaintiffs of a central and longstanding aspect of the Meyer-Pierce right, the appropriate level of scrutiny therefore must be strict scrutiny.

To satisfy strict scrutiny, California must show that its infringement of the private-school Plaintiffs' rights is "narrowly tailored" to advance a "compelling" state interest. "Stemming the spread of COVID-19 is unquestionably a compelling interest." The only question, therefore, is whether the State has shown that its broad prohibition of in-person education satisfies the narrow-tailoring requirement as a matter of law. It has not.

In Diocese of Brooklyn, the Supreme Court held that attendance caps of 10 and 25 people at indoor religious services in areas that were classified as having a high prevalence of Covid were not narrowly tailored. As the Court explained, such caps were "more restrictive than any COVID–related regulations" that the Court had upheld; they were "much tighter than those adopted by many other jurisdictions hard-hit by the pandemic"; and they were "far more severe than has been shown to be required to prevent the spread of the virus" at the relevant facilities.

The same points are applicable here. By prohibiting in-person instruction at the relevant Plaintiffs' schools, California effectively imposed an attendance cap of zero, which is much more restrictive than the numerical caps struck down by the Supreme Court for religious services in Diocese of Brooklyn. That alone confirms that California's prohibition on in-person instruction is not sufficiently tailored.

Moreover, Plaintiffs presented undisputed evidence that California's broad and lengthy closure of schools was more severe than what many other jurisdictions have done, thereby further negating any suggestion that California adopted the least restrictive means of accomplishing its compelling interest. And Plaintiffs presented evidence that California had failed to narrowly tailor its response inasmuch as it stubbornly adhered to an overbroad school-closure order even as evidence mounted that Covid's effects exhibit a significant age gradient, falling much more harshly on the elderly and having little impact, statistically speaking, on children. As the district court noted, Plaintiffs presented "a veritable library of declarations from physicians, academics, and public health commentators" who underscored this key deficiency in California's stated "basis for in-person learning restrictions."

California's only response to that evidence was to fall back on two relatively brief expert declarations from a CDPH official (and doctor) who did not deny the indisputable age differential in Covid impacts, but who nonetheless defended the broad school-closure ban on the grounds that, given the mechanics of Covid transmission, "[i]t is possible that in the school setting, as in other settings, asymptomatic transmission may occur." The State's expert did not identify any evidence indicating that children in a school setting would present greater risks of transmission than some of the other activities that the State had authorized, such as operating grocery stores, factories, daycare centers, and shopping malls. While the district court concluded that the State's response was sufficient for rational-basis purposes, the same cannot be said under strict scrutiny.

On this record, the State's concerns about transmission would justify a potential range of more narrowly drawn prophylactic measures within schools to mitigate such risks; it cannot justify wholesale closure. See Monclova Christian Acad. v. Toledo-Lucas Cnty. Health Dep't (6th Cir. 2020) (holding that plaintiffs would likely succeed on the merits of their First Amendment challenge to the closure of religious schools because an Ohio county's shutdown of every school in the county, while allowing gyms, tanning salons, office buildings, and a large casino to remain open, does not survive strict scrutiny). And broad measures that fail to take proper account of relevant differences between the school-age population and others are, by definition, not narrowly tailored.

As with its rigidly overbroad approach to religious services, California once again failed to "explain why it cannot address its legitimate concerns with rules short of a total ban." We certainly cannot say that, as a matter of law, California's "drastic measure" of closing the private-school Plaintiffs' schools for nearly a year survives strict scrutiny….

Judge Andrew Hurwitz dissented:

The majority errs in both (1) finding that the narrow Meyer-Pierce right protects a parent's choice of a particular mode of education and (2) concluding that any law impacting the Meyer-Pierce right is subject to strict scrutiny….

The majority … reads the Meyer-Pierce right as protecting a parent's right to choose a specific mode of education…. [But t]he Supreme Court has instructed us to read those decisions narrowly, explaining that Meyer protects a parent's right to choose a child's curriculum, and that Pierce protects a parent's right to choose a school for the child. [The dissent cites Supreme Court cases that read Meyer and Pierce as not including a right to send their children to segregated private schools. -EV] Neither right is at stake here: Plaintiffs freely chose the private school of their choice and do not complain about state interference in the substance of what those schools teach.

The majority justifies its expansion of the Meyer-Pierce right by claiming that it must "necessarily" have included a right to select in-person education. But the Supreme Court has told us the contours of the right, and they do not encompass a given mode of instruction. Their reliance on isolated language in prior decisions fares no better. To be sure, in Fields, we explained that the Meyer-Pierce right protects the "choice of the educational forum." But that statement simply reaffirmed the principle that parents were free to choose the school their children will attend, and did not even indirectly suggest that the mode of delivery of instruction was a matter of constitutional magnitude. The same applies to our prior quoting of Justice Harlan's dissent in Berea College v. Kentucky (1908), in Farrington v. Tokushige (9th Cir. 1926), for the following proposition:

"If pupils, of whatever race … choose with the consent of their parents or voluntarily to sit together in a private institution of learning while receiving instruction which is not in its nature harmful or dangerous to the public, no government, whether federal or state, can legally forbid their coming together, or being together temporarily for such an innocent purpose."

The decision plainly involves the decision to operate a private school, not whether that school is then subject to generally applicable non-discriminatory health regulations….

Even assuming the Meyer-Pierce right protects in some fashion a parent's right to select in-person education during a pandemic, the majority errs in concluding that all laws impacting that interest must survive strict scrutiny. The Supreme Court has repeatedly emphasized that the Meyer-Pierce right remains subject to "reasonable" state regulation. Applying strict scrutiny whenever a Meyer-Pierce interest is at stake vitiates this controlling precedent. If every regulation touching on a Meyer-Pierce interest must survive that heightened review, a host of "reasonable" regulations would not survive, as there might be a less drastic means of achieving the state's purpose.

In finding that strict scrutiny applies, the majority again elevates isolated language of opinions over their actual holdings. That the Supreme Court has described the right as "fundamental" does not allow us to disregard its repeated injunctions that the right remains subject to "reasonable regulation." Indeed, even when presented with an opportunity to broadly apply strict scrutiny to laws infringing the Meyer-Pierce right, only one justice indicated that he would do so. See Troxel v. Granville (2000) (Thomas, J., concurring).

The correct question to ask in reviewing the challenged orders is simply whether they are "reasonable." That they are is a point the majority does not—and cannot—dispute; indeed, it implicitly accepts that conclusion in rejecting the claims of the public-school Plaintiffs. We must be particularly deferential in the context of the COVID-19 pandemic, as we "are not public health experts and … should respect the judgment of those with special expertise" in this area. California imposed the challenged orders to protect its citizens from a pandemic. Relying on established scientific consensus about how the virus spreads, California temporarily restricted in-person schooling alongside a host of other activities. These restrictions have now largely been lifted as the threat of the pandemic has waned. The challenged orders can thus hardly be said to be unreasonable, and, as a result, should be upheld….