“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Ninth Circuit judge Daniel Collins wrote a 2-1 decision reversing a district court and ruling that private school parents have a fundamental right to choose in-person instruction even during a pandemic, threatening to effectively exempt private schools from state COVID and other rules. The July 2021 decision was in Brach v Newsom.
In July, 2020, 15 parents and students, including ten in public school and five in private, filed a federal complaint that challenged California public health orders that suspended in -person instruction at schools due to the COVID-19 pandemic. In-person instruction had generally been prohibited for several months beginning in March, but before the end of July, the state authorized many schools to seek to reopen for in-person instruction, depending on health conditions in individual counties and the age of the students. The plaintiffs nevertheless contended that they had a right under the constitution to direct the education of their children so that all could attend school in person rather than online.
A federal district court granted summary judgment to the state in December, 2020, based on the recognized authority of governments to restrict school attendance and comparable activities because of the dangers of the pandemic. The plaintiffs appealed, even though the ability of schools to offer in-person instruction was continually growing. By the time of the Ninth Circuit’s decision in July, California rules no longer prevented any of the plaintiffs’ schools from offering in-person instruction and the state had issued guidelines for full in-person instruction for the coming school year.
Nevertheless, Trump judge Collins issued a 2-1 opinion that reversed the lower court order, but only for private schools. Collins agreed with the district court decision as applied to public school parents, stating that precedent did not support a “federal constitutional right” to have the state “provide an education in any particular manner.” With respect to private schools, however, Collins claimed that the COVID restrictions on in-person instruction violated parents’ “fundamental right” under the Constitution to “control their children’s education” and “choose their children’s educational forum.” According to Collins, the state’s restrictions appear to lack “narrow tailoring” and may not survive the “strict scrutiny” that Collins maintained was required. Collins thus reversed the district court’s order as it applied to private schools and parents and sent the case back down to consider that issue. This was despite the fact that California had announced that all schools could open for the next school year, because Collins concluded that the state did not meet its “heavy” burden of showing that there is “no reasonable expectation that the wrong will be repeated” in the future.
Judge Andrew Hurwitz strongly dissented. Initially, he explained that the case should have been dismissed as moot because the “record is compelling” that there was no “reasonable expectation” that in-person instruction would be suspended again, even if COVID case rates rise significantly. Much more disturbing, Hurwitz wrote, was Collins’ ruling about the rights of private vs public schools and their parents, which “casts aside governing law, reimagining the scope of Supreme Court precedent.”
More specifically, Hurwitz went on, the majority’s analysis “rests on out-of-context quotations” from Supreme Court decisions primarily in the 1920s concerning parents’ right to send their children to private school. As the Supreme Court explained in the 1970s, although such earlier cases recognized that right in general, parents “have no constitutional right to provide their children with private school education unfettered by reasonable government regulation.” That is exactly what California was doing here, Hurwitz continued, and there is no constitutional right of parents to “choose a specific mode of education” such as in-person vs virtual education during a pandemic. Under the majority’s view, Hurwitz suggested, private schools could be exempt from “a host of ‘reasonable’ regulations” that apply to public schools. This could include safety requirements, civil rights protections, and more.
The future of this particular case remains unclear, since the full Ninth Circuit may decide to review it and the district court may uphold the state’s rules even under the improper standard set by Trump judge Collins. The issue of private school exemptions from reasonable government regulation may well come up in the future, and particularly with several existing vacancies on the Ninth Circuit, the case illustrates the importance of promptly confirming fair-minded Biden nominees who can counterbalance the disturbing views of Trump judges like Collins.