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Ninth Circuit Rules Newsom’s COVID Closure of Private Schools Unconstitutional

Victory at the Ninth Circuit Court of Appeals

July 23, 2021—Today, the Ninth Circuit Court of Appeals reversed and remanded, in part, a district court ruling erroneously upholding Governor Newsom’s closure of nearly 80% of schools across California. In doing so, the Ninth Circuit held that Governor Newsom’s COVID-19 order closing private schools violated parents’ Due Process rights to determine the forum of their kids’ education. The Center for American Liberty, with counsel Eimer Stahl LLP and the Dhillon Law Group, appealed the District Court’s summary judgement dismissal of the landmark #OpenCASchools case, Brach v. Newsom.

In ruling for parents, the Ninth Circuit reasoned:

“…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 interested protected by the Due Process Clause,’ and that right includes ‘the right of parents to be free from state interference with their choice of the educational forum itself.’”

“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.”

“Today’s opinion from the Ninth Circuit is a huge victory for parents’ rights,” said Harmeet K. Dhillon, CEO of the Center for American Liberty. “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 education their children.”

“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 concluded.

The Center for American Liberty filed Brach v. Newsom on July 21, 2020 on behalf of parents of children, many with special needs, who were being denied individualized instruction and the ability to attend school in person.

On December 1, 2020, the United States District Court granted a sua sponte motion for summary judgment in favor of the defendants, leaving public and private school facilities closed across most of the state. In his opinion, Judge Wilson reasoned “that no fundamental right to basic education exists” before concluding that plaintiffs’—mostly parents—claims “were unlikely to succeed on the merits.”

Ninth Circuit Rules Newsom’s COVID Closure of Private Schools Unconstitutional

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