Parental Rights

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.

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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 MeyerPierce 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….

 

NEXT: Today in Supreme Court History: July 24, 1997

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  1. The’ve got 29 active Judges and no vacancies, plus 18 Senior Judges still cranking the handle, and they need to drag in some poor 85 year old coot from Missouri to sit by designation ?

    Lazy bums.

    1. In terms of population served, the 9th is almost twice the size of the next largest circuit.

      Compared to the 5th circuit (3rd in size) the 9th has 1.9 times the population to serve and only 1.7 times the number of authorized judges(29 vs 17). Oddly the second largest circuit by population, the 11th, only has 12 judges.

      The 9th has a way bigger case load than any other circuit.

      1. Then, break it in half.

        1. If each half only gets half the judges they have now, how does that fix any case load issues they have?

          1. That assumes that case load is proportional to population. And it isn’t necessarily.

            For example, the circuit court (overall) caseload peaked in 2016, at roughly 1926 filed cases. Since then it’s dropped, to 1478/1435 cases filed in 2019/2020 (respectively).

            https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2020

            1. That the relationship between total number of cases and total US population varies over time says nothing about the distribution of cases across the Circuits and/or how the distribution of cases relates to distribution of population across the circuits.

        2. Break it into smaller parts than that.

          No Cal / Hawaii – with the court in Eagleville, Ca
          So Cal / Arizona / Nevada – Court in Pananca NV
          Washington / Alaska – Court in Allakaleet, AK
          Oregon / Idaho/ Montana – Court in Rome, Oregon

          1. Two districts with 2 states and two with 3 — while the average is what, 6 states? A lot of other districts would want to be broken up as well — and then when you had 20-30 circuits, there’d inherently be a *lot* more conflicts between the circuits than SCOTUS could deal with.

            1. SCOTUS could deal with a lot more than they do, if they wanted to.

    2. They are lazy, shiftless, worthless, slow shuffling, donut chomping, secretary chatting federal workers. They cannot be fired. They are the stupidest of the stupidest occupation in the country.

      1. The closure of the school was another dream I have had for decades. Close all buildings. Stop driving buses in the snow. You go, you come back, wasting 2 hours that could be spent on learning. Fire the teachers. You get the best kindergarten art teacher in the country. She teaches the nation of kindergarten students to do art. Take back 90% of school taxes.

        Yet, again, against personal interest, I join with the people opposing school closures by the dirty Commie traitors. It hurt kids, especially kids with educational problems. There is a soaring rate of child suicide attempts and completed suicides. There is a deep demoralization among our children. It is from the dirty scumbag Commies now in total control of our schools. The courts and the lawyer profession is doing nothing about it. The lawyers are traitor filth. That epithet has the purpose of justifying the decapitation of its hierarchy, after a brief trial, of course. They are not human, they are filth.

        Upon return, our children, K to 12, are to subjected to emotional child abuse in the for of diversity training and blaming of white children, who did nothing wrong. Again the lawyer profession is doing nothing.

      2. They are lazy, shiftless, worthless, slow shuffling, donut chomping, secretary chatting federal workers.

        Who’s scruffy-looking?

        1. Those nerfherding justices, that’s who…

  2. I hope this ruling won’t be used as precedent to keep Governor Cuomo from shutting down Orthodox schools, Synagogues, weddings, bar/bat mitzvahs, or entire neighborhoods whenever he likes.

    1. “We remand for further consideration because it implicates a fundamental right. So, go consider whether the laws meet the burden required of strict scrutiny.

      But also the law is overbroad and does not meet strict scrutiny, for these reasons. So really, we remand for the lower court to come to the decision we’ve given it.”

    2. wrong place, ugh.

      didn’t mean to reply

    3. Cuomo will host the bat mitzvahs himself, but only for the cute ones.

  3. Well, I’m glad we know this now. Would have helped a year ago …

  4. 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.

    I’m getting really tired of the argument that the state can do anything it wants in the name of pubic health. All the more so now that it’s been demonstrated repeatedly with masks (fauci saying masks don’t work), lockdowns (blm protest is ok, but nothing else) , and more that experts will change what they say based on politics instead of science.

    1. Yes, it is abundantly clear that most elected officials and even bureaucrats look for justifications to do whatever they already decided on, rather than for evidence about what will actually support their ostensible target metrics. They’re not doing anything with deferring to.

    2. “pubic health”
      Well they can’t for that unless it’s maskless in public.

  5. Whatever fucktard suggested it doesn’t fall afoul of Meyer should be launched into space on a Chinese rocket and the others who went with it on Russian rockets. Meyer was very explicit about the choice of mode of instruction being a parental right.

    1. gormadoc: Do you think that calling people who disagree with you “fucktards” is likely to persuade people? Or might it be more helpful to actually respond to the other side’s arguments (which the dissent lays out in some detail)?

      1. If the dissent can be this pissy and expect to convince people then I can call people fucktards. No, I doubt it would convince them. I doubt just as much that they’re reading these comments in an effort to sway themselves. If I were speaking to them in person then I might try to convince them rather than condemn them.

        Having seen how many of these “government ignores well-established rights during the pandemic” cases have gone, I also doubt that they believe their own arguments and are making them only to get out of trouble. The dissent indicates that he would have gone precisely that way, after all. It bases that entirely on existing orders and “consistency” even though CA refused to rule out that it would do it again. It looks incredibly deferential considering the church cases.

        The dissent’s engagement with precedent was weak. Insisting both that the right is limited to the forum and that the state banning a particular mode of instruction resting on place cannot be infringing that right is ridiculous. That would require “forum” to be the school and not at all the location but the SC has never explicitly separated the two. As the majority says, “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.”

      2. I haven’t seen anyone persuaded by a thoughtful discussion in a very long time. Gormadoc is a dingbat, but that’s what works these days. Pissing people off persuades them.

        1. It depends on how skillfully they are pissed off, and in what direction. This kind of insult is just as likely to backfire. For that matter, from the first comment alone, I’d have given it 50/50 as to which side he was on and who he was trying to insult and piss off.

        2. Most rants aren’t expected to be persuasive, the speaker is the focus rather than the audience. If the ranter achieves some catharsis from blowing off steam then I suppose you can say the rant “works”, but judging by how often they tend to be repeated here the relief must be short-lived.

      3. Why should we follow Marquess of Queensberry Rules while the left fights freestyle? “Fucktard” is the least of what we are routinely called…..

        1. Those with even a vestigial sense of honor, morality, or decency aspire to do better than their adversaries, not to use their perceived misconduct as an excuse to justify sinking even lower.

          Can’t say I’m surprised which course you’ve opted for.

          1. I’m sure that there were Rabbis who politely debated the Nuremburg Laws, and how’d that turn out?

      4. But fucktard had the desired intention: to get a response.

        A corollary to the Streisand effect is that calling attention to asinine information such as conspiracy theories, misinformation, and vulgar comments, especially over the internet, has the unintended consequence of further publicizing that information.

      5. Prof. Volokh. Do you ever criticize leftists? You are in the degenerate culture of LA. You have a blind spot among many. The leftists here do nothing but violate the Fallacy of Irrelevance. You do nothing about it. It is from thr KGB Handbook they picked out the trash. I will bieve you and respect you more if you say you have an even handed criticism policy.

        1. As to arguments and persuasion. Those are preposterous. There is zero chance any can overcome the rent seeking interests, the local culture, and the pride of the listener.

          I see the utility of the comments as a way to think out loud, to generate ideas, to hear and to convey new ideas to people who think the same.

          For example, it is self evident the progressive agenda is Chinese Commie Party talking points. That needs to be pointed out to the nation. Once Taiwan is attacked, and taken, the progressive traitors and agents of the Chinese Commie Party get rounded up.

    2. I like the outcome, but I can see an argument for claiming that Meyer just prohibits the state from regulating the content of private schooling, not the mode. Because that’s what they were doing, prohibiting education in other than English.

      I’m not at all sure the language instruction is given in is the same as whether it’s remote or in person, legally.

      Really, deciding the nature of your minor child’s education should be a classic 9th amendment right, if it weren’t for the fact that the courts flatly refuse to uphold the 9th amendment, treat it as though it didn’t exist.

      1. Almost likea time place manner decision?

        1. The dissent’s citation of Runyon is very relevant here. Pierce and Meyer are, under SCOTUS precedent, read very narrowly. Plenty of restrictions on private schools are lawful and are not subject to strict scrutiny.

      2. Content and provider both, I’d say. Or maybe that’s the combination of Meyer and Pierce together.

        Still, I can’t say that I’m displeased with the result. If all of the parents with children at the school agree to accept the risks (of whatever level they may be) of having their children attend in person classes, then the state should respect that choice. Particularly since we’re talking about a disease that mostly didn’t target children.

    3. At risk of being rhetorically condemned to a one-way space voyage, can you point to the language in Meyer that you consider “very explicit” on the remote vs. in-person question? I just re-read the opinion and I can’t say it jumped out at me.

  6. The two virus-flouting judges are Republicans (one a Trump pick from the fringe).

    Their views with respect to this polarizing issue consequently seem unlikely to survive in the medium to long term.

    Unless conservatives become competitive in the culture war, they will have a dim future in practical American jurisprudence.

    1. Seems they won, and you lost, Artie. 7-2

      1. Conservatives have been losing in America — vividly — for five or six decades. They are positioned to continue to lose. I expect the pace of liberal-libertarian progress to accelerate in modern America.

        This explains the disaffectedness and desperation observed among Republicans and conservatives. Lurching toward Trump and extremism. Creating doomed separatist organizations. Adopting longshot tactics. Migrating from trying to persuade others to attempting to preserve carve-outs from generally applicable law for their dwindling group of misfits.

    2. The majority of real Americans oppose the interests of the Chinese Commie Party promoted by all progressive arguments, and by all progressives like Artie. Artie kids himself from the fake polls and from the media, owned by the tech billionaires.

  7. “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,”

    Unless it involves irreversible medical treatments on minors, or abortions on minors; then it is totally OK to not only not notify the parents, but to force them to accept the rulings of others if they do find out.

  8. No comments yet about how it’s totally cool to bully schools and parents and children into distance learning when other, less drastic, more narrowly tailored remedies exist and are in use for other things?

    Nothing about how the government should continue to bully these kids and families and teachers even after everyone learned from schools in other states that the closures don’t significantly impact hospitalization numbers?

    The Branch Covidians haven’t jumped in to comment yet. When they do I’m sure we’ll see the needs and welfare of children minimized and the primacy of fear and ritualistic prevention measures that have no scientific basis.

    1. Here in SC, the state and some local governments shut down the public schools for a while, but left the private schools alone. There were no reports of Covid problems at the private schools.

      So the school closures were, in retrospect, never justified in the first place.

    2. At this point, why bother?

      We can quibble about whether this or that specific measure was, in hindsight, a good thing, but based on the available information at the time, closing the schools was far from irrational. And it’s done far less damage overall than the covid-deniers and anti-vaxers who are preventing herd immunity and keeping the virus alive far longer than it would be otherwise.

      Do government officials not always get it right? Of course. Neither did your parents.

      1. In February 2020, your suggestions that we didn’t know were accurate. But by May, we knew – and by September, when the schools were supposed to open, we had plenty of studies that were showing schools were safe, enough to convince anyone but a science denier.

        Keeping them closed for another 6 months (or longer!) was entirely irrational… if the basis for closure was actually the safety of the students.

        This is why we got situations like Fairfax County Public Schools, where vaccinated teachers refused to teach in-classroom, so students were sent to the classrooms, teachers taught remotely, and unvaccinated adults were hired to oversee the children in the classrooms.

        1. You can no doubt cite some of these plenty of studies?

          1. Where were the studies justifying the closures?

            Why do bullies get to bully everyone based on lack of knowledge and their victims have to cite studies to get relief?

            1. I’m not the person who invoked studies. That was Toranth.

              The authorities decided to err on the side of caution. Maybe they were too cautious, but if we had ended up with three times as many deaths, you’d be screaming about their failure to act. At this point the primary damage is being done by the back deniers.

              1. They caused more deaths by treating people badly and forcing everyone to huddle together in buildings where they got infected instead of outdoors where it’s safe.

                But the previous point stands: they had no studies they were using to support their bullying. It shouldn’t require studies to make the opposite case either.

                After 60 days, if government hasn’t conducted a study to justify their stupid health rule, then they’re showing they don’t care whether it works or not.

                1. Don’t forget forcing nursing homes to accept COVID patients.

                  Good thing the Biden DOJ decided “not to pursue” those investigations…

                2. They had no studies because there was no good data at the time. Which does not mean they should have done nothing. You take the best information you have and run with it.

                  Suppose you had been in charge. On what bass would you have left schools open? Anything you do, including doing nothing, has unforeseen consequences.

                  1. “On what bass would you have left schools open?”

                    The evidence that children had much lower rates of infection and serious consequences? The international data that showed that schools could remain open without an outbreak? The state-level data that showed schools could remain open in certain southern states, without significantly different infection rates?

                    That’s good for s start

                    1. And you have citations for all of these? I thought this was fairly basic, but the person claiming something exists has the burden of proof.

                  2. There were studies – and 30 seconds with an internet search engine of your choice could have found them.

                    “I didn’t look for something and didn’t find it, therefore it doesn’t exist” is not the strong argument you seem to think it is.

                    1. I didn’t pretend to have gone looking for it. You’re the one who invoked studies so you’re the one with the burden of proof. You claim they exist; prove it.

                    2. You were actively denying that something exists without ever having looked for it? In your 5:47pm post, you claim, explicitly, that “they had no studies” – but you knew that you had never looked to see if such studies did or did not exist? That’s a rather blatant lie, then, and it’s odd that you seem proud of it.

                      Also, that’s not how “burden of proof” works. I’d recommend you look up how to argue, but you probably can’t be bothered to do that, either.

          2. Why yes, I can!

            Lazzerinni, et al,COVID-19 in Italy, Lancet Child Health, Apr 2020
            Zhu, Wang, Huang, et al, Clinical characteristics of a case series of children with coronavirus disease, Pediatric Pulmonology, Apr 2020
            Shen, Guo, Guo, et al, Novel coronavirus infection in children outside of Wuhan, China, Pediatric Pulmonology, Apr 2020
            Grasselli, et al, Baseline Characteristics and Outcomes of 1591 Patients Infected With SARS-CoV-2 Admitted to ICUs of the Lombardy Region, Italy, Journal of the American Medical Association, Apr 2020
            Su, Ma, et al, The different clinical characteristics of corona virus disease cases between children and their families in China – the character of children with COVID-19, Emerging Microbes & Infections, Apr 2020
            Centers for Disease Control, Coronavirus Disease 2019 in Children — United States, February 12–April 2, 2020, Apr 2020
            Gudbjartsson, et al, Spread of SARS-CoV-2 in the Icelandic Population, New England Journal of Medicine
            Tagarro, et al, Screening and Severity of Coronavirus Disease 2019 in Children in Madrid, Spain, JAMA Pediatrics, Apr 2020

            I’ve got a couple dozen more studies published before May, once you’ve read through those. I don’t feel like re-writing them all out, though.

        2. Yeah, but pointing fingers at people who are not like them is an all-purpose justification for anything. With QAnon out there bogeyman-ing it up you can’t expect anyone in government to ever act with any restraint whatsoever.

          Besides, do you expect them to care about the children of rednecks and deplorables?

          1. I care about those children. There is still hope they might become productive, worthy citizens. That is why I favor a strong lifeline for those who wish to depart the deplorable backwaters to seek opportunity, modernity, and education on strong liberal-libertarian campuses or in modern, successful cities.

            No decent person faults a minor for having losers for parents. And we will need all of the educated, skilled, decent, reasoning, modern citizens we can get. We should strive to make it possible for those young people to escape.

      2. So government can hurt anyone as much as they want and the defense will be that it not “irrational” and others are also bad.

        Since that sort of thinking works for totalitarian regimes, I suggest it’s not adequate for anyone who believes governments should be better than, for example, Cuba or North Korea.

        1. Actually, I didn’t say any of those things.

          Anyone in a leadership position is going to make mistakes; that comes with the territory. The question is whether it was a rational decision based on the available information at the time.

          1. It was for the first month or two. After that it was irrational and abusive.

            1. You should run for office. It would be interesting to observe how persuasive your arguments and beliefs are among the American citizenry.

              (In some desolate and irrelevant backwaters, your preferences might be quite popular.)

          2. Notice how none of those leaders who made mistakes, ever admitted to such? Maybe because the decision was not based on science, but how a powerful constituency (teachers unions) would react?

      3. “At this point, why bother?”

        Because of the threat of closing schools again this fall?

  9. The lawyer profession blew this one. Judicial review could have served our nation. It failed, and 100’s of times. Biggest fraud heist. $4 trillion hit to the world GDP from the lockdown. 1000’s killed by the lockdown of medical care, by allowing infected health workers to provide intimate care to nursing home patients. A major hit to our economy. The strengthening of China. Massive increases in deaths of despair. You did nothing to stop our enemies. You stink, you lawyers.

    1. Why should lawyers care? They all got paid to work from home. Most of them didn’t miss a single paycheck and they had working class people to deliver stuff to their houses.

        1. When they do step up, a tiny bit, it is to protect their fellow supernatural doctrine practitioners. The lawyer profession is a disgrace.

  10. What is the limiting principle on judicial power to overturn public health emergency powers? Does it differ from one pandemic to the next, depending on lethality, depending on the degree of contagion, depending on duration of emergency effects? Do none of those factors matter at all? Is the judicial review just about a fact-free review of rights and precedents? If that is so, what is a legitimate public health emergency at all, and can it do anything to preserve health or save lives which could not have been done without it?

    1. “What is the limiting principle on judicial power to overturn public health emergency powers?” The Constitution?

      1. tkamenick, you may have noticed that your answer leaves all my particular questions unaddressed. Want to try to take a shot at those?

    2. Stephen, as usual, skips right past the first question – what is the limiting principle that prevents government from passing arbitrary infringements on liberty under the guise of public health?

      1. Rossami, that is a fair question, but not an answer to my question. If ours is a government of limited powers, that rule applies to the entire government, courts included. What limits the courts in the instance of overturning emergency powers? That, of course, is another way to get at the question whether emergency powers, by their nature, escape some limits, or all limits, imposed on ordinary powers. Do they?

        1. Nothing limits the courts from making decisions in cases that are properly within their jurisdiction.
          Satisfied with that answer SL?

          1. I should have added the the litigants must have standing to bring the case.

        2. “If ours is a government of limited powers, that rule applies to the entire government, courts included. ”
          A cute bit of sophistry, SL

          1. Except it’s no longer a government of limited powers. The pandemic proved that.

    3. The limiting principle is the historical realization those in power love their emergency powers, and have a tendency to use them to solidify their power.

      It’s very healthy to keep an eye on them. Indeed, it’s foolhardy wistling past the grave not to, given miserable human history on this aspect.

      1. Krayt, I do not doubt that keeping an eye out is a wise thing to do, to assure emergency powers are not exceeded. My question is, what limits the courts? Got an answer for my question?

        1. “what limits the courts?”
          Nothing but the desire of plaintiffs to bring law suits and prosecutors to bring criminal charges

          1. In short, Don Nico, no such thing as emergency powers. All rights apply full strength, all the time. That, of course, is a novel legal conception. Emergency powers of limited duration are a time-honored capability included within the framework of American Constitutionalism. They have always involved temporary limits on rights enforcement. If your peculiar insistence to the contrary were made law, it would serve the nation disastrously during the next deadly pandemic. I doubt you thought that through, or applied your notion to a hypothetical case of a pandemic which threatened to kill a notable percentage of everyone.

    4. The constitutional principle favors the government if there is a “scintilla of rationality or of government interest.” It is very biased in favor of government. The lockdown lacked a scintilla of rationality, since the quarantine practice of 700 years and the quarantine laws of the states allow the lockdown of the infected. They do not allow the lockdown of the normal to enrich the tech billionaire oligarchy. The results validate the damage from the lockdown, and the lack of a scintilla of benefit, except to the oligarch that own the media and the Democrat Party.

      That phrase is from this case:

      https://www.law.cornell.edu/supremecourt/text/481/739

      1. Steven. German law did not allow the confinement of people without a conviction of a crime. The concentration camps were filled in compliance with a letter from Adolf Hitler. Only one judge tried to enforce German law. He was driven out. See the Wikipedia article on Lother Kreyssig. It is remarkable. The rest of the judges complied with this executive order enforced by an ultra-violent Gestapo. Know what happened to them? Those judges got hanged.

        1. Before anyone can get huffy about the German people of the 1930’s, consider us in 2020. The Germans not only voted for the Nazi Party, they benefitted from their plunder and from their mass murder rampage.

          Then, there is us. In 2020, we killed 100 million people by starvation in only one year, and a lot of got greatly enriched from the shutdown. We outdid the German people by an order of magnitude of evil.

          That includes me. The lockdown made my dreams of 20 years come true, and I busted records in earnings. All my arguments and legal actions were totally against personal interest. I took the money and benefits, but just could not go all German.

  11. I worry what this says for the anti-CRT laws being enacted.

    1. Sims. The CRT are all stale talking points of the Chinese Commie Party of the 1960’s. It has no validity. It is just anti-American propaganda adopted by the tech billionaires kowtowing to get access to the China market.

  12. Socrates famously refused to write down his teachings, saying that only dialectic – personal, live interaction between teacher and student – can educate. He said there’s a difference.

    Second, it seems hard to understand what Myer v. Nebraska was about if it wasn’t about limits on the state’s ability to dictate what constituties a suitable education. If parents have no say in the content of their children’s education, why do they have a right to hire a German teacher when the state says children who know German won’t be able to fit in?

    Finally, it seems to me that there basic outcome is about right. While core school choices are subject to heightened scrutiny, the circumstances of a pandemic are generally sufficient to overcome it. And while the Religion Clauses may entitle religion to a “most favored interest” status (if you except other arguably comparable things, you have to except religion too), this jurisprudence is unique to religion, and it isn’t the case with the Due Process Clause generally.

    1. That is, I agree the District erred by granting sua sponte summary judgment without having thoroughly heard the parties’ positions, and by treating this case as a simple rational basis matter. The matter is subject to heightened scrutiny, the case is not so obvious as all that, and the 9th Circuit was correct to reverse and remand for further proceedings.

      I would tend to ground Meyers more directly in the First Amendment then in the nebulous modern doctrine of “privacy.” A state can’t expect to shut down all newspapers on grounds they spread disease without expecting to be challenged and to have to make a serious showing before the courts. I see this as similar.

      With proper scrutiny and appropriate proceedings, the state might well be able to meet its burden that the measure is necessary. But doing so requires evidence. Summary judgment before obtaining the necessary evidence was clearly improper here.

      1. You just have to thoroughly wash your delivered newspaper before reading it, in case the paperboy is asymptomatically spreading Covid. 😉

  13. Given the importance and difficulty of the issue, I think it’s a foregone conclusion that the 9th Circuit will grant rehearing en banc. After that, SCOTUS might well want to get involved. This case still has a long way to go, and it’ll be interesting to see how it turns out.

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