California’s school closure rules violated private school families’ rights, appeals court rules

Empty school desks
At Vista Square Elementary in Chula Vista, some classroom desks were surrounded by plastic dividers before schools reopened.
(Nelvin C. Cepeda / San Diego Union-Tribune)

An appeals court Friday ruled that state leaders violated the rights of parents by forcing private schools to stay closed during the COVID-19 pandemic.

But the U.S. 9th Circuit Court of Appeals essentially upheld the state’s decision to keep public schools closed to in-person instruction during the pandemic.

The appeals court ruling is the latest development in the lawsuit Brach vs. Newsom, which was filed against Gov. Gavin Newsom last July by California public school and private school families, including two from San Diego. A national conservative group called the Center for American Liberty led the lawsuit effort.


The lawsuit challenged the state’s rules preventing K-12 schools from offering in-person instruction in counties with high coronavirus case rates. The plaintiff families argued that the rules deprived their children of a meaningful education and violated their due process rights and equal protections under the 14th Amendment.

While K-12 schools had to remain closed in counties with high coronavirus case rates, other educational facilities could remain open, including child-care programs and K-12 schools in low-COVID counties. The plaintiffs argued that the state’s rules were therefore arbitrary and treated people unequally.

In San Diego County, some school districts reopened as early as last fall and remained open throughout the pandemic, while others had to wait until spring to reopen because of state restrictions. Even in some closed schools, the state allowed limited numbers of students for in-person services.

Newsom’s office has defended the school closure rules, saying they were meant to help prevent the spread of COVID-19.

“Throughout this once-in-a-lifetime pandemic, the state was guided by science and data — prioritizing the health and safety of students, staff, and their families while supporting schools to meet the needs of students and return to in-person learning quickly,” Newsom’s office said in an email Friday. “All students are returning to full, in-person instruction next year, and the state is focused on ensuring that return is successful.”

In December, a district court dismissed all the plaintiffs’ due process claims for public and private school families. The district court said the 14th Amendment’s due process clause does not recognize a fundamental right to basic education, and the plaintiffs had failed to explain how distance learning constituted a wholesale denial of a basic education.


The appeals court reversed that lower court’s decision pertaining to private schools and remanded the matter back to the lower court.

“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,” wrote Judge Daniel Collins in the appeal court’s opinion Friday.

As for public schools, the court said the state had a “legitimate and compelling interest” in preventing the spread of COVID-19 by requiring the closure of schools in counties with high COVID-19 cases. The court also said the state was justified in having different closure rules for public schools, child care centers and other facilities.

Among the three judges on the appellate panel, one judge wrote a dissent.

But Harmeet Dhillon, chief executive of the Center for American Liberty, called the appeal court ruling “a huge victory for parents’ rights.”

“The Ninth Circuit rightly ruled in parents’ favor, affirming that they — and not Gavin Newsom or faceless bureaucrats — have the right to decide how best to educate their children,” she said in a statement.

But Dhillon said she is disappointed that the appellate court ruled only in favor of private school families, not public school families.


“While we are thrilled for our clients whose rights are vindicated by today’s decision, we are disappointed the Ninth Circuit did not rule that all students, including those in public school, have a basic right to an education. We will continue to advocate for the educational rights of all students,” Dhillon said.

Takeda writes for the San Diego Union-Tribune.