Brach v. Newsom

Decision Date23 July 2021
Docket NumberNo. 20-56291,20-56291
Citation6 F.4th 904
Parties Matthew BRACH, an individual; Jesse Petrilla, an individual; Lacee Beaulieu, an individual; Erica Sephton, an individual; Kenneth Fleming, an individual; John Ziegler, an individual; Alison Walsh, an individual; Roger Hackett, an individual; Christine Ruiz, an individual; Z.R., a minor; Adebukola Onibokum, an individual; Brian Hawkins, an individual; Tiffany Mitrowke, an individual; Marianne Bema, an individual; Ashley Ramirez, an individual, Plaintiffs-Appellants, v. Gavin NEWSOM, in his official capacity as the Governor of California; Robert A. Bonta, in his official capacity as the Attorney General of California; Tomás J Aragón, in his official capacity as the State Public Health Officer of California and Director of the California Department of Public Health; Tony Thurmond, in his official capacity as State Superintendent of Public Instruction of California and Director of Education of California, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Harmeet Dhillon, Esquire, Mark P. Meuser, Dhillon Law Group, Inc., San Francisco, CA, Robert Edward Dunn, Esquire, Eimer Stahl, LLP, San Jose, CA, for Plaintiffs-Appellants.

Jennifer Ann Bunshoft, Deputy Attorney General, AGCA - Office of the California Attorney General, San Francisco, CA, Darin L. Wessel, AGCA - Office of the Attorney General (San Diego), San Diego, CA, for Defendants-Appellees.

Before: Eugene E. Siler,* Andrew D. Hurwitz, and Daniel P. Collins, Circuit Judges.

Dissent by Judge Hurwitz


COLLINS, Circuit Judge:

Plaintiffs, 14 parents and one student, appeal from the district court's grant of summary judgment dismissing their federal constitutional challenges to the State of California's extended prohibition on in-person schooling during the Covid-19 ("Covid") pandemic. We conclude that, despite recent changes to the State's Covid-related regulations, this case is not moot. As to the merits, we 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 reverse the district court's grant of summary judgment as to these five Plaintiffs and remand for further proceedings.

As for Plaintiffs’ claims under the Equal Protection Clause of the Fourteenth Amendment, we conclude that the public-school Plaintiffs have failed to make a sufficient showing of a violation of the Equal Protection Clause. The challenged distinctions that the State has drawn between public schools and other facilities are subject only to rational-basis scrutiny, and these distinctions readily survive that lenient review. As to the private-school Plaintiffs, we vacate the district court's judgment rejecting their Equal Protection claims and remand for further consideration in light of the conclusion that the State's actions implicate a fundamental right of those Plaintiffs.


This case involves a challenge to various orders that California has issued concerning the operation of schools and other facilities during the current Covid pandemic. The Defendants are various officials of the State of California, whom we refer to collectively as "California" or "the State." Among the Plaintiffs are 10 parents of current California public-school students and one public-school student (collectively, the "public-school Plaintiffs").1 Also included among the Plaintiffs are five parents (collectively, the "private-school Plaintiffs") who seek to send their children to private school for in-person instruction. The various Plaintiffs contend that, as applied to their schools, California's prohibition on in-person learning "effectively preclud[ed] children from receiving a basic minimum education" and violated their fundamental rights under the Due Process Clause of the Fourteenth Amendment. Plaintiffs also allege that California's school-closure mandate violated the Equal Protection Clause by "arbitrarily treat[ing] Plaintiffs’ children (and other minors attending public and private schools) differently from those in nearby school districts; from those in childcare; and from those attending summer camps, even though all such children and their families are similarly situated." Plaintiffs sought a declaratory judgment, injunctive relief, and other "appropriate and just" relief for the alleged violation of their constitutional rights.

On appeal from the district court's summary judgment against them, Plaintiffs ask us to reverse and remand with instructions to grant summary judgment in their favor. In reviewing the factual and procedural background concerning Plaintiffs’ claims, we begin by describing the legal framework of the relevant restrictions that California has placed on the operation of public and private schools, and we then summarize the specific factual context of Plaintiffs’ claims.


As cases of Covid began to rise in early 2020, government officials across the country began to issue orders seeking to control the spread of the virus. In framing its de jure restrictions, California adopted a comprehensive approach. On March 19, 2020, the Governor issued Executive Order N-33-20, which directed all California residents "to immediately heed the current State public health directives," including the requirement "to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors." See Cal. Exec. Order N-33-20 (Mar. 19, 2020) (emphasis added).2 Under this order, which remained in effect until June 11, 2021, the default rule was that California residents were prohibited "from leaving their homes for any reason, except to the extent that an exception to that order granted back the freedom to conduct particular activities or to travel back and forth to such activities." South Bay United Pentecostal Church v. Newsom , 959 F.3d 938, 944 (9th Cir. 2020) (Collins, J., dissenting). Accordingly, the ability to operate schools (or anything else) turned on what sort of permission State officials granted back either in the form of rules governing "critical infrastructure sectors" or some other exception to the stay-at-home order.

Shortly thereafter, on March 22, 2020, the California State Public Health Officer issued a list of designated "essential" workers who were allowed to leave their homes to support specified critical infrastructure sectors. That list expressly included workers teaching at "public and private ... K-12 schools," but only for "distance learning." Although many schools had already independently decided to close by that time, the effect of these orders was to impose a new State mandate that schools remain limited to "distance learning."

On May 4, 2020, the Governor issued Executive Order N-60-20, which reiterated the obligation to "continue to obey State public health directives," which "have ordered all California residents [to] stay home except for essential needs, as defined in State public health directives." Cal. Exec. Order N-60-20 (May 4, 2020). This order addressed the State's issuance of a planned four-stage "Roadmap" for reopening, which defined "Stage 1" as the then-existing largely closed state of affairs. The order stated that, in implementing such a phased reopening, the State Public Health Officer could establish "criteria and procedures" to allow local health officers "to establish and implement public health measures less restrictive" than the State-imposed measures. Id . The order further stated that no aspect of the order, including the State Public Health Officer's "establishment or implementation of such criteria or procedures," would be subject to California's "Administrative Procedure Act [(‘APA’)], Government Code section 11340 et seq." Id . The order also declared that nothing in these "criteria and procedures" governing local health officers "shall limit the authority of the State Public Health Officer to take any action she deems necessary to protect public health in the face of the threat posed by COVID-19." Id .

In a follow-on May 7, 2020 order, the State Public Health Officer stated that she would "progressively designate sectors, businesses, establishments, or activities that may reopen with certain modifications." See Cal. State Public Health Officer Order of May 7, 2020. This order further provided that, "[t]o the extent that such sectors are re-opened, Californians may leave their homes to work at, patronize, or otherwise engage with those businesses, establishments, or activities," provided that, "at all times," they must "practice physical distancing, minimize their time outside of the home, and wash their hands frequently." Id . The order reiterated that, apart from any such designated exceptions, the March 19 stay-at-home order "otherwise remains...

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13 cases
  • Doe v. Del. Valley Sch. Dist.
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • November 11, 2021
    ...negligible that the minor-plaintiffs are not, in fact, receiving the education to which they are entitled. See e.g. Brach v. Newsom , 6 F.4th 904, 924 (9th Cir. 2021) (analyzing substantive due process claim brought by parents challenging a series of orders that California had issued concer......
  • Brach v. Newsom
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 15, 2022
    ...days later, a divided panel of this court held that this case was not moot and reversed the district court in part. See Brach v. Newsom , 6 F.4th 904, 921, 934 (9th Cir.), vacated , 18 F.4th 1031 (9th Cir. 2021). Rejecting the State's claims of waiver, the panel accepted the parents' new ar......
  • United States v. Olsen
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 6, 2022
    ...J., joined by Kavanaugh, J., concurring in part) (agreeing with Justice Gorsuch's statement on this point).2 Brach v. Newsom , 6 F.4th 904, 927–33 (9th Cir. 2021), vacated on grant of rehearing en banc , 18 F.4th 1031 (9th Cir. 2021).3 Tandon v. Newsom , ––– U.S. ––––, 141 S. Ct. 1294, 1297......
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    ...parents to prevent transgender students from sharing school bathrooms and locker rooms with cisgender children.48 And just this year in Brach v. Newsom , the court rejected claims by the parents of public-school students that they have a fundamental right to in-person learning that was viol......
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1 books & journal articles
    • United States
    • Constitutional Commentary Vol. 37 No. 2, June 2022
    • June 22, 2022
    ...replace the traditional tiers of constitutional scrutiny."); see also McFadden & Kapoor, supra note 3, at 834. (31.) Brach v. Newsom, 6 F.4th 904, 932 (9th Cir. 2021), reh'g en banc granted, No. 20-56291, 2021 WL 5822544 (9th Cir., Dec. 8, (32.) Air Force Officer v. Austin, No. 5:22-cv-......

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