Ninth Circuit Court of Appeal decides against Gov. Newsom closing private schools during pandemic

Juliette Fairley, Southern California Record
July 30, 2021

The 9th Circuit Court of Appeal decided against the state in Matthew Brach et al v. Gov. Gavin Newsom et al, ruling that it violated a parents’ right to choose by closing private schools during the pandemic.

A three-judge panel issued the 84-page opinion on July 23. The panel consisted of Circuit Judges Eugene E. Siler, Andrew D. Hurwitz, and Daniel P. Collins.

“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,” Judge Collins wrote in the opinion. “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.”

As previously reported in the Southern California Record, Brach, who is the lead plaintiff in the lawsuit, is an elected member of the Board of Education for the Palos Verdes Peninsula Unified School District.  He and nine other individuals filed their complaint on July 21 in the Central District of California Western Division, alleging violations of constitutionally and federally protected rights through counsel, the Center for American Liberty.

“The court is saying that what the state cannot do, as a matter of law, is absolutely ban in-person classes at private schools because it effectively denies parents a choice to opt-out of the public school system and by having a complete ban the state overstepped itself,” said Jeff Lewis, a Rolling Hills Estates attorney who submitted an amicus brief on behalf of a group of teachers called Educators for Safe School Opening. “In terms of a summary judgment, the plaintiffs had at least the right to put on evidence and try to prove their claim.”

The ruling comes at a time when California is under the threat of the emerging new Delta variant of COVID-19.

This week, the number of new cases reached 7,457, which is the highest in nearly six months since February 10, 2021, according to media reports, with only 55% of California residents having been immunized.

“The state has a lot less wiggle room when it comes to how it regulates private schools as opposed to public schools and it has to make a stronger showing in terms of public health and the severity of COVID and everything else,” said Lewis who has two children enrolled in school in Palos Verdes. “I would suspect that based on this ruling that, God forbid if the virus gets bad again, we will not have an outright ban. Instead, there would be more nuanced restrictions in the future.”

Although the panel reversed and remanded the case for further proceedings, the state has the right to appeal to the Supreme Court of the United States (SCOTUS).

“It’s possible the state will appeal but I don’t think they would win,” Lewis said. “I don’t think the U.S. Supreme court would grant review because it ruled in favor of the churches back East and against the government.”

As previously reported in the Southern California Record, SCOTUS overturned New York Gov. Andrew Cuomo’s religious restrictions on Nov. 25, issuing a temporary injunction that prevents Gov. Cuomo from enforcing limits of 10 and 25 worshipers because five justices thought New York state’s virus risk classifications were discriminatory.

“Things have changed since the complaint was filed,” Judge Hurwitz wrote in a dissenting opinion. “The State has made substantial progress in battling the pandemic, largely because of the introduction of effective and widely available vaccines. Given that progress, the challenged orders no longer prevent any of plaintiffs’ schools from providing in-person instruction. Indeed, even if case rates rise, no reopened school would be required to close by the challenged orders, and the State has recently issued guidelines for full in-person education for the coming school year.”

Lewis, like Judge Hurwitz, felt the Court should have dismissed the case.

“The courts are saying that just because the pandemic is getting better or the state changes its rules, it doesn’t mean the judges can’t come in and rule after the fact on whether or not the state is overreaching,” Lewis added. “That’s the most significant thing about the ruling is that it’s basically a warning shot saying that the judicial system can weigh in, even after the fact, on what the state does.”