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 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
No. 20-56291
D.C. No. 2:20-cv-06472-SVW-AFM
United States Court of Appeals for the Ninth Circuit
July 23, 2021
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted March 2, 2021, Pasadena, California
Opinion by Judge Collins;
Dissent by Judge Hurwitz
Civil Rights
The panel affirmed in part and reversed in part the district court’s summary judgment in an action brought by parents and a student alleging federal constitutional challenges to the State of California’s extended prohibition on in-person schooling during the Covid-19 pandemic.
The panel concluded that, despite recent changes to the State’s Covid-related regulations, this case was not moot. The panel framed its mootness analysis by the Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020), invoking the same two doctrines: voluntary cessation and capable of repetition yet evading review. The panel held that to the extent that the State has now removed its prior per se school-closure order, that was the result of the State’s voluntary conduct in repeatedly changing the framework of restrictions. The panel rejected as foreclosed by Diocese of Brooklyn, the State’s argument that the voluntary cessation doctrine was inapplicable because reclassifications of counties into lower tiers was attributable to changes in underlying Covid infection rates, rather than any changes in California directives. The panel held that given the State’s “track record of moving the goalposts; its retention of broad authority to reinstate those heightened restrictions at any time; and its failure to expressly foreswear ever using school closures again,” the panel could not say that the State carried
As to the merits, the panel held that the district court properly rejected the substantive due process claims of those plaintiffs who challenged California’s decision to temporarily provide public education in an almost exclusively online format. The panel stated that 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 had not made a sufficient showing that the panel could or should recognize such a right in this case.
The panel reached 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 implicated 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 abridged a fundamental liberty of these five plaintiffs that was protected by the
As for plaintiffs’ claims under the
Dissenting, Judge Hurwitz stated that despite the drastically changed legal landscape, the majority refused to recognize that the case was moot. But the majority’s mootness analysis, while incorrect, did little damage on its own. What was far more troubling was the majority’s treatment of the private-school plaintiffs’ constitutional claims. In finding that plaintiffs had pleaded a substantive due process violation, the majority relied on an argument never raised below. And in addressing that forfeited argument, the majority cast aside governing law, reimagining the scope of Supreme Court precedent and applying strict scrutiny to the challenged state health directives.
Robert E. Dunn (argued), Eimer Stahl LLP, San Jose, California; Ryan J. Walsh, John K. Adams, and Amy C. Miller, Eimer Stahl LLP, Madison, Wisconsin; Harmett K. Dhillon, Mark P. Meuser, and Michael Yoder, Dhillon Law Group Inc., San Francisco, California; for Plaintiffs-Appellants.
Jennifer A. Bunshoft (argued) and Darin L. Wessel, Deputy Attorneys General; Gregory D. Brown and Jennifer G. Perkell, Supervising Deputy Attorneys General; Cheryl L. Feiner, Senior Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, San Diego, California; for Defendants-Appellees.
OPINION
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
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 implicated 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 abridged a fundamental liberty of these five Plaintiffs that is protected by the
As for Plaintiffs’ claims under the
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
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.
A
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
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.
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 in full effect.” Id.
Under the Framework’s criteria, a school generally could reopen for in-person instruction only if the school’s local health jurisdiction had not been on the County Monitoring List for the preceding 14 days. If the local health jurisdiction was on the County Monitoring List over that 14-day period, then the school was required to “conduct distance learning only.” After consultation with the CDPH, a local health officer could grant a waiver from these criteria, but only in the case of “elementary schools” and only if the relevant school official requested it. As the CDPH later explained,
On August 3, 2020, the CDPH issued detailed guidance for conducting any authorized in-person operations in “Schools and School-Based Programs.”4 The guidance covered such matters as face coverings, social distancing, hand washing, disinfection, and ventilation. On the same day, the CDPH issued an additional memorandum concerning elementary-school waiver requests, and this document stated that the CDPH recommended against waivers for elementary schools in counties with 14-day case rates of more than 200 cases per 100,000 people.
Later that same month, the CDPH issued guidance allowing a “specified subset of children and youth” to meet in “controlled, supervised, and indoor environments,” but only in small “cohorts” of no more than 14 children, and with
On August 28, 2020, the Acting State Public Health Officer issued an order announcing an “updated framework for reopening,” which eventually became known as the “Blueprint for a Safer Economy.” See Cal. State Public Health Officer Order of Aug. 28, 2020. Under this new system, California used specified metrics to assign each county to one of four tiers, ranging from Tier 1 (indicating “Widespread” community transmission) to Tier 4 (“Minimal” transmission). This August 28 order superseded the prior July 13 order that relied on the “County Monitoring List.” Id. Under the new order, “Tier 1” replaced the County Monitoring List, although the criteria ultimately developed
In subsequent guidance, the CDPH reiterated that the July 17, 2020 school reopening “Framework” remained in effect, except that any reference to the “County Monitoring List” now referred to “Tier 1” counties. Accordingly, “[s]chools in counties within Tier 1 [we]re not permitted to reopen for in-person instruction,” except pursuant to the waiver process for certain elementary school grades. Once a county fell out of Tier 1 for 14 days, then schools were “eligible for reopening at least some in-person instruction” in accordance with the applicable protocols. The CDPH also reaffirmed that, once a school reopened, it was not required to close again even if its county “move[d] back to Tier 1.”
After the district court granted summary judgment in this case, the CDPH revised its school reopening framework on January 14, 2021. Under the State’s updated “Reopening In-Person Instruction Framework” (hereinafter the “Revised Framework”),5 elementary schools in Tier 1 could open for
in-person instruction if the county’s adjusted case rate remained below 25 cases per 100,000 people per day for at least five consecutive days. In connection with this loosening of the elementary-school closure rules, the Revised Framework terminated the pre-existing waiver process (although previously granted waivers remain valid). This Revised Framework was further updated on March 20, 2021 to allow schools to reopen for in-person instruction for all grades K–12 if the adjusted weekly county case rate fell below 25 per 100,000 population per day.6 Schools had at least three weeks to reopen, even if the county adjusted case rate subsequently surpassed 25 per 100,000 per day. If a school did not reopen within the three-week eligibility window and the case rates once again rose above the reopening threshold, the school was presumably not permitted to reopen for in-person instruction.
In addition, Assembly Bill 86 was enacted into law on March 5, 2021, and it imposed several requirements in connection with the provision of in-person instruction. See 2021 Cal. Stat. ch. 10 (A.B. 86). In particular, the law
On June 11, 2021, the Governor issued Executive Order N-07-21, which formally revoked both Executive Order N-33-20 (the stay-at-home order) and Executive Order N-60-20 (the order on which the State’s Blueprint framework of restrictions was based). See Cal. Exec. Order N-07-21 (June 11, 2021). As a result, “all restrictions on businesses and activities deriving from that framework, including all aspects of the Blueprint for a Safer Economy,” were rescinded. Id. The new order, however, expressly preserves the State Public Health Officer’s authority to issue Covid-related directives and to do so without regard to the restrictions of California’s APA.7 Id. Contemporaneously with the issuance of this new executive order, the State Public Health
On July 12, 2021, the CDPH issued guidance for the upcoming 2021–2022 school year that adopts a new framework that emphasizes masking and other measures, with the stated aim of maximizing opportunities for in-person instruction. See CDPH, COVID-19 Public Health Guidance for K–12 Schools in California, 2021-22 School
B
On July 21, 2020, Plaintiffs filed suit against California requesting declaratory and injunction relief. Plaintiffs subsequently sought a temporary restraining order (“TRO”), which the district court denied. Shortly thereafter, the district court requested briefing on whether it should grant summary judgment sua sponte. In opposing summary judgment, Plaintiffs relied largely on the factual presentation they had made in connection with their earlier-filed TRO and preliminary injunction motions. Those submissions included declarations from each of the adult Plaintiffs, and these declarations constitute the primary record evidence concerning the individual Plaintiffs’ respective factual situations.
The declarations submitted by the public-school Plaintiffs assert that their children have been harmed by distance learning. For example, Matthew Brach describes
The private-school Plaintiffs submitted similar declarations, alleging that their children have suffered emotionally or academically as a result of California’s distance-learning mandates. One of these parents, Roger Hackett, has a sixth-grade son who attends Oaks Christian School in Los Angeles County. Hackett alleges that Oaks Christian would have provided in-person instruction but could not do so due to the State’s orders. Consequently, his son has received only “remote learning,” which in Hackett’s view “does NOT come close to replacing actual in-school, in-person teaching and learning.” Hackett attested that he would immediately send his son back to school for in-person instruction upon reopening.
After receiving briefing, the district court granted summary judgment to California on December 1, 2020. This expedited appeal followed. “We review de novo the district court’s grant of summary judgment.” Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011). “[V]iewing the evidence in the light most favorable to the nonmoving party,” we must determine “whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Id.
Before turning to the merits of Plaintiffs’ claims, we first address the threshold issue of whether their claims are moot.10 After oral argument on March 2, 2021, the counties in which Plaintiffs’ schools operate were reclassified so that they no longer fell within Tier 1. The State reclassified Santa Clara County to Tier 2 on March 2; Los Angeles and Orange Counties on March 9; and San Diego, Riverside, and Ventura Counties on March 16.11 In light of these post-argument developments, we requested and received supplemental briefs from the parties as to whether this matter was now moot. See St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537 (1978)
The supplemental materials submitted by the State in support of mootness indicate that several of the public-school Plaintiffs’ schools opened for in-person instruction before the end of the 2020–2021 school year. Those materials do not affirmatively show that any of the private schools had similarly reopened before the end of the 2020–2021 school year, but the district court record already indicates that Erica Sephton’s child’s school reopened pursuant to a school-specific waiver in the fall of 2020. Although the evidence it cites is somewhat unclear, the State represents that Oaks Christian School, which Hackett’s child attends, reopened before the end of the 2020–2021 school year. At the very least, once their counties were given their new tier assignments, all of Plaintiffs’ schools became eligible to reopen under the State’s Revised Framework.12 Under that framework, any schools that actually reopened would not need to close again even if the school’s county returned to Tier 1. And, as noted earlier, the State recently
Our analysis of mootness in this case is framed by the Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). There, the Court rejected a comparable claim of mootness in connection with the plaintiffs’ challenge to New York’s system of Covid restrictions, which used an analogous “zone” system to impose capacity limits for religious services. Similar to California’s tier-based system for counties, New York’s system classified geographic areas within counties or cities into zones based on a combination of pre-set thresholds and other criteria. In New York’s case, the thresholds for each respective zone were based on the “7-day rolling average positivity rate” as well as the rate of “new daily cases per 100,000 residents on [a] 7-day average.”13 At the time they first sought relief, the New York plaintiffs’ relevant facilities were in either “red” zones, in which “no more than 10 persons may attend each religious service,” or in “orange” zones, in which “attendance is capped at 25.” 141 S. Ct. at 66. By the time the matter reached the Supreme Court, however, the State had “reclassified the areas in question from orange to yellow, and this change mean[t] that the applicants [could] hold services at 50% of their maximum occupancy.” Id. at 68. The Court declined to treat the matter as moot, citing cases involving the voluntary cessation doctrine, see id. (citing Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)), and the rule governing disputes that are capable of repetition but evading review, see id. (citing
We conclude that the same two doctrines invoked in Diocese of Brooklyn also apply here and confirm that this case is not moot.14
A
To the extent that the State has now removed its prior per se school-closure order, that is a result of the State’s voluntary conduct in repeatedly changing the framework of restrictions. The general rule is that a “voluntary cessation of allegedly illegal conduct does not deprive the [court] of power to hear and determine the case, i.e., does not make the case moot.” United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). To establish mootness in such circumstances, the defendants bear the “heavy” burden of demonstrating that “‘there is no reasonable expectation that the wrong will be repeated.’” Id. at 633 (citation omitted); see also Friends of the Earth, 528 U.S. at 189 (“The heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” (simplified)). California has failed to carry that heavy burden here.
California argues that the voluntary cessation doctrine does not apply at all, because, in its view, the case became moot when the relevant counties were reclassified into lower tiers, and that reclassification, according to the State, is attributable to changes in underlying Covid infection rates, rather than to any changes in California’s directives. This argument is foreclosed by Diocese of Brooklyn. There, the Supreme Court applied the voluntary cessation doctrine, even though the change in the applicable restrictions was due to reclassifications within the zone system established by the New York Governor’s executive order, rather than to the adoption of a new system. See 141 S. Ct. at 68–69. The Court recognized that New York’s then-current matrix of Covid-related restrictions could hardly be treated as if it were an independently determined system that limited the Governor’s discretion and ensured that the challenged restrictions would never be reinstated. The Court thus necessarily rejected the very same argument that California presses here.
Because the voluntary cessation doctrine applies in this case, the question is whether the State has carried its “formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 190
Moreover, as the Supreme Court explained in rejecting California’s most recent—and comparable—mootness argument, a challenge to state restrictions is not moot when “officials with a track record of ‘moving the goalposts’ retain authority to reinstate those heightened restrictions at any time.” Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (quoting South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 720 (2021) (Gorsuch, J., statement)). So too, here, nearly the entire edifice of California’s oft-changing Covid-related restrictions is the product of Defendants’ own unilateral decrees, which have rested on a comparable retention of unbridled emergency authority to promulgate whatever detailed restrictions Defendants think will best serve the public health and the public interest at any given moment.
Thus, during the course of this litigation, Defendants have previously tightened Covid-related school restrictions as they have deemed warranted, most notably when they replaced the “County Monitoring List” with a stricter set of criteria that made it easier for counties to fall under the State’s school-closure mandate. See supra at 14–15. More recently, they loosened the relevant criteria, thereby facilitating an earlier escape from that restriction by some counties’ schools. See supra at 15. In doing so, Defendants
Accordingly, if the CDPH became concerned that case rates are increasing, that the pace of immunization has slowed, and that new variants pose a threat, it has the authority to swiftly revise the relevant restrictions and reimpose school closures, even for reopened schools, in specified areas. The dissent entirely discounts this
The dissent claims that, even if Covid rates “rise, perhaps even precipitously,” it is already clear that the State will never again impose distance-learning requirements. See Dissent at 63–65. This unsupported speculation ignores the State’s heavy burden. Although the State’s current policy does not rely on school closures and expresses a strong preference for in-person instruction, the question is whether the State has shown that it is “absolutely clear” that “the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 190. Indeed, as the dissent itself notes, a prior surge last summer caused the State to reverse course and abandon its previous school reopening plans. See Dissent at 57 n.1. Given the State’s “track record of ‘moving the goalposts’”; its retention of broad “authority to reinstate those heightened restrictions at any time”; and its failure to expressly foreswear ever using school closures again, Tandon, 141 S. Ct. at 1297 (citation
B
For related reasons, the restrictions at issue here also fall squarely into the category of official acts that are “capable of repetition, yet evading review.” Southern Pac. Terminal Co. v. Interstate Com. Comm’n, 219 U.S. 498, 515 (1911); see also Wisconsin Right to Life, 551 U.S. at 462. Were we to treat this case as moot, the case would have evaded review despite the Plaintiffs’ best efforts to expedite it, and a future case would likely suffer the same fate. Plaintiffs here have moved with dispatch throughout this litigation, and yet it took seven months from the filing of their First Amended Complaint in July 2020 for the matter to be presented to this court for decision on the merits. And even that pace was achieved only because Plaintiffs sought expedited treatment in this court and successfully resisted the State’s efforts to prolong the briefing schedule and to defer the oral argument. Were California again to enforce a distance-learning mandate on Plaintiffs’ schools, by the time a future case challenging the new mandate could receive complete judicial review, which includes Supreme Court review, the State would likely have again changed its restrictions before that process could be completed. Effective relief likely could not be provided in the event of any recurrence, which makes this a paradigmatic case for applying the doctrine of “capable of repetition, yet evading review.” See Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 855–56 (9th Cir. 1999) (two-year permit could be reviewed despite expiration because two years were not enough to guarantee “complete judicial review, which includes Supreme Court review under our precedent”).
* * *
We therefore conclude that under both the voluntary cessation doctrine and the rule concerning disputes that are “capable of repetition, yet evading review,” neither the public-school nor private-school Plaintiffs’ claims are moot.
Having concluded that the case is not moot, we turn first to the merits of Plaintiffs’ due process claims. In doing so, we consider separately the distinct substantive due process claims of the public-school Plaintiffs and those of the private-school Plaintiffs. We conclude that the district court correctly granted summary judgment dismissing the former claims, but it erred in dismissing the latter.
A
The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.”
The Court noted that “[e]ducation, of course, is not among the rights afforded explicit protection under our Federal Constitution,” and it concluded that there was also no “basis for saying it is implicitly so protected.” Id. at 35. In reaching that conclusion, the Court emphasized that the asserted right to have the state affirmatively provide an education was “significantly different from any of the cases in which the Court has applied strict scrutiny to state or federal legislation touching upon constitutionally protected rights,” inasmuch as those prior cases all “involved legislation which ‘deprived,’ ‘infringed,’ or ‘interfered’ with the free exercise of some such fundamental personal right or liberty.” Id. at 37–38 (emphasis added) (citations omitted). The Court rejected the plaintiffs’ contention that “education is distinguishable from other services and benefits provided by the State,” assertedly due to its importance in exercising other rights, such as “First Amendment freedoms” and the “right to vote.” Id. at 35. As the Court explained, the plaintiffs’ argument had no logical stopping point, because in terms of its contribution to the ability to exercise such other rights, education could not be meaningfully
Subsequent Supreme Court decisions have similarly reaffirmed that “[p]ublic education is not a ‘right’ granted to individuals by the Constitution.” Plyler v. Doe, 457 U.S. 202, 221 (1982) (quoting Rodriguez, 411 U.S. at 35); see also Kadrmas, 487 U.S. at 458; Papasan v. Allain, 478 U.S. 265, 284 (1986). We have likewise declined to recognize the existence of a “federal constitutional right to a public education.” Payne, 653 F.3d at 880 (citing Plyler, 457 U.S. at 221); see also Guadalupe Org., Inc. v. Tempe Elementary Sch. Dist. No. 3, 587 F.2d 1022, 1026 (9th Cir. 1978) (“[E]ducation, although an important interest, is not guaranteed by the Constitution” and “is not a fundamental right.”).
Plaintiffs nonetheless point to language in Rodriguez and Plyler that they contend supports the view that a failure to provide a minimum education would violate substantive due process rights. See Rodriguez, 411 U.S. at 25 n.60 (noting that the question before the Court would have been different
Moreover, even if there were grounds to recognize such a right in an appropriate case, Plaintiffs have failed to show
The public-school Plaintiffs have thus failed to show that they have been deprived of a fundamental right that is recognized under the Supreme Court’s or this court’s caselaw. Consequently, in reviewing their substantive due process challenge to the provision of public education via distance learning, we ask only whether the State’s actions “bear[] a rational relation to a legitimate government objective.” Kadrmas, 487 U.S. at 461–62. California’s actions readily satisfy that deferential standard. Abating the Covid pandemic is not only a legitimate state interest, but a compelling one, Diocese of Brooklyn, 141 S. Ct. at 67, and California has provided an ample basis for concluding that, as a matter of law, its refusal to allow in-person public school instruction is rationally related to furthering that interest. We therefore affirm the district court’s grant of summary judgment to California with respect to the claims of the public-school Plaintiffs.
B
As explained above, the primary reason that the claims of the public-school Plaintiffs fail is that the case authority from the Supreme Court and this court has declined to recognize a federal substantive due process right to the provision of a public education. But the claims of the private-school Plaintiffs do not stand on the same footing,
1
Plaintiffs’ opening brief on appeal squarely raises the argument that California’s school-closure policies violate the fundamental right of several Plaintiffs to educate their children at in-person, private schools, thus divesting them of the “choice of the educational forum itself.” Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1207 (9th Cir. 2005); see also Pierce, 268 U.S. 510; Meyer, 262 U.S. 390. “This right is commonly referred to as the Meyer-Pierce right.” Fields, 427 F.3d at 1204. However, the State argues that this contention was not sufficiently raised and preserved in the district court. We disagree.
In Plaintiffs’ operative complaint, Plaintiffs generally alleged that their “Substantive Due Process” rights under the Fourteenth Amendment had been violated by the school-closure orders, which “effectively preclud[ed] [their] children from receiving a basic minimum education.” Plaintiffs’ claims must be understood against the backdrop of the relevant caselaw, which (as explained earlier) draws a sharp distinction between the alleged fundamental right to the provision of a basic minimum public education and the Meyer-Pierce right to be free of government interference in the choice of a private educational forum. See supra at 32–33. Thus, as applied to the private-school Plaintiffs, the complaint’s substantive due process claim cannot reasonably be understood as alleging that the State had failed in its obligation to provide “a basic minimum education,” because those Plaintiffs were not asking the State to provide one. Rather, as to these Plaintiffs, this claim can only be understood as asserting that the State was unconstitutionally interfering with these Plaintiffs’ effort to choose the forum
The two distinct threads of Plaintiffs’ claim were also reflected in their district court papers seeking a TRO and an order to show cause why a preliminary injunction should not issue. For example, their reply memorandum in support of that motion argued both that “[s]tate-provided education” was a fundamental right and that the parental right “‘to control the education of their’ children” that was recognized in “Meyer v. Nebraska, 262 U.S. 390, 401 (1923),” was “at least a ‘quasi-fundamental right.’” Of course, the private-school Plaintiffs were not asserting that their children were being deprived of a “state-provided education,” but only that the State was interfering with these Plaintiffs’ right to control the education of their children at the private forum of their choice. Plaintiffs’ opening memorandum in support of that same motion likewise emphasized the State’s interference with both “State-provided or -permitted education.” Once again, because the private-school Plaintiffs were clearly not complaining about the lack of a
After the district court denied Plaintiffs’ motion for a TRO and instead requested briefing on whether it should grant summary judgment sua sponte, Plaintiffs’ opposition again emphasized both the State’s failure to provide an education and its affirmative interference with children obtaining the education their parents had chosen for them. In response to the district court’s observation, in its TRO-denial order, that states have broad discretion as to the manner in which public education is provided, Plaintiffs argued both that this comment rested on too narrow a view of state-provided benefits and that, in all events, the State may not act so as to affirmatively “deprive children of the right to a minimum education altogether” (emphasis added). In support of this point, Plaintiffs cited Fields v. Palmdale School District, 427 F.3d 1197, in which we held that the Meyer-Pierce right generally does not give parents the authority “to interfere with a public school’s decision as to how it will provide information to its students,” but instead gives them the right “to be free from state interference with their choice of the educational forum itself.” Id. at 1206–07 (emphasis added). Yet again, Plaintiffs’ papers objected
The State is therefore wrong in suggesting that the more detailed Meyer-Pierce argument that is contained in Plaintiffs’ appellate opening brief should have been presented in that form in the district court and that, by not doing so, Plaintiffs forfeited this entire point. As just explained, the private-school Plaintiffs unquestionably presented below the claim that the State’s closure of their private schools violated their Fourteenth Amendment right to choose the educational forum that would best provide an adequate education for their children. Indeed, these Plaintiffs cannot reasonably be construed as having presented a claim about the provision of public-school education. Having presented their private-school-closure claim below, Plaintiffs “can make any argument in support of that claim [on appeal]; parties are not limited to the precise arguments they made below.” Yee v. City of Escondido, 503 U.S. 519, 534 (1992); see also United States v. Pallares-Galan, 359 F.3d 1088, 1094–95 (9th Cir. 2004) (defendant properly raised new argument on appeal to support his underlying claim below). The State’s forfeiture contention takes an unrealistically narrow view of the permissible scope of appellate argument. “An argument is typically elaborated more articulately, with more extensive authorities, on appeal than in the less focused and frequently more time-pressured environment of the trial court, and there is nothing wrong with that.” Puerta v. United States, 121 F.3d 1338, 1341–42 (9th Cir. 1997).
In all events, even if Plaintiffs’ Meyer-Pierce argument were otherwise forfeited, this is a paradigmatic case for exercising our discretion to consider arguments raised for the first time on appeal. See El Paso City v. America West Airlines, Inc. (In re America West Airlines, Inc.), 217 F.3d 1161, 1165 (9th Cir. 2000); see also AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1213–14 (9th Cir. 2020). Whether summary judgment was properly granted against the private-school Plaintiffs on the record before the district court raises a question of law that we review de novo, and we therefore have discretion to consider a new argument as to why that court erred as a matter of law. See America West, 217 F.3d at 1165. That the Meyer-Pierce issue in this case is a straightforward question of law, together with the importance of the issue, weighs in favor of considering the arguments that have been squarely raised on appeal. See, e.g., Countrywide Home Loans, Inc. v. Lehua Hoopai (In re Hoopai), 581 F.3d 1090, 1096 (9th Cir. 2009). We would thus exercise discretion to consider the private-school Plaintiffs’ claims even if we had concluded that their claims had been forfeited.
2
We therefore turn to the merits of the private-school Plaintiffs’ contention that California‘s prohibition on in-person instruction violates their fundamental rights under the
a
As we have previously observed, 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 interest protected by the Due Process Clause,” and that this right includes “the right of parents to be free from state interference with their choice of the educational forum itself.” Fields, 427 F.3d at 1204, 1207; see also Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (plurality) (noting that the Court had repeatedly “recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children,” including “the right ‘to direct the upbringing and education of children under their control‘” (quoting Pierce, 268 U.S. at 534–35)). Thus, even as the Court has “‘always been reluctant to expand the concept of substantive due process,‘” it has repeatedly reaffirmed its recognition, in Meyer and Pierce, of a “fundamental right[]” to “direct the education and upbringing of one‘s children.” Glucksberg, 521 U.S. at 720 (citation omitted); see also Troxel, 530 U.S. at 65 (plurality) (describing the Meyer-Pierce right as “perhaps the oldest of the fundamental liberty interests recognized” by the Court); id. at 80 (Thomas, J., concurring in judgment) (agreeing that, under Pierce, “parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them“).
The State does not dispute that Meyer and Pierce recognized a fundamental right of parents concerning the education of their children. Nonetheless, noting that Pierce
The State‘s narrow reading of the Meyer-Pierce right and the State‘s purported carve-out for generally applicable regulations of all schools are both refuted by Meyer itself. There, the Supreme Court confronted a generally applicable Nebraska statute stating that “‘[n]o person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language.‘” 262 U.S. at 397 (emphasis added) (citation omitted). The only exception under the statute was that foreign languages “‘may be taught as languages,‘” but only after the eighth grade. Id. (citation omitted). The Nebraska statute thus had both features that California says are enough to evade any constitutional scrutiny: it did not interfere with the decision to enroll in a private school, and it imposed a restriction that was generally applicable to both private and public schools. Nonetheless, the Supreme Court struck down the Nebraska statute, concluding that it impermissibly “attempted materially to
The State‘s definition of the right is thus unquestionably too narrow. But the Supreme Court has also cautioned against an overbroad reading of the Meyer-Pierce right. See Runyon v. McCrary, 427 U.S. 160, 177 (1976) (stating that Pierce “lent ‘no support to the contention that parents may replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society‘” (quoting Wisconsin v. Yoder, 406 U.S. 205, 239 (1972) (White, J., concurring))); see also Norwood v. Harrison, 413 U.S. 455, 461 (1973) (emphasizing the “limited scope of Pierce“). In discerning the contours of that right, and whether California‘s restrictions implicate it, we must be guided by the Supreme Court‘s insistence on a “‘careful description’ of the asserted fundamental liberty interest,” Glucksberg, 521 U.S. at 721 (citation omitted), which ordinarily “must be defined in a most circumscribed manner, with central reference to specific historical practices,” Obergefell v. Hodges, 576 U.S. 644, 671 (2015). Here, a consideration of historical practice and tradition confirms that California has
As historically understood, the Meyer-Pierce right necessarily embraced a right to choose in-person private-school instruction, because—as the State conceded at oral argument—such instruction was until recently the only feasible means of providing education to children. Thus, prior to the advent of the internet and associated technology, it would never have been imagined that the Meyer-Pierce right did not include the right to choose in-person private instruction. We are aware of no authority, for example, suggesting that Meyer-Pierce only protected the right of parents to choose correspondence schools for their children. The technological advances of recent years raise the possibility that the Meyer-Pierce right might conceivably be deemed to have expanded to cover the ability to choose such additional modes of learning, just as the First Amendment right to speak in letters and in newspapers extends to emails and blogs.21 But the fact that instruction can now also occur online provides no basis for concluding that the traditional, long-understood core of the right—the right to choose a private school offering in-person instruction—has now somehow been removed from that right. That would make no more sense than suggesting that the rise of the internet means that the right to free speech and a free press no longer includes the right to speak to a live audience or to publish in a physical newspaper. Put simply, the fact that technology now makes it possible to have a different type of learning
Precedent further confirms the common-sense notion that the Meyer-Pierce right includes the right to choose traditional in-person instruction at a private school. In Fields, we described the Meyer-Pierce right as “the right of parents to be free from state interference with their choice of the educational forum itself.” Fields, 427 F.3d at 1207. It is hard to imagine a more direct interference with the “choice of the educational forum itself” than a prohibition upon in-person instruction in that chosen forum. And in Farrington v. Tokushige, 11 F.2d 710 (9th Cir. 1926), we expressly noted that the Meyer-Pierce right protected in-person instruction in the course of addressing whether that right was infringed by the Territory of Hawaii‘s onerous regulation of foreign-language schools. Id. at 713–14. In describing the contours of that right, we quoted Justice Harlan‘s dissenting opinion in Berea College v. Kentucky, 211 U.S. 45 (1908), which emphasized the physically congregative aspect of private-school education:
If pupils, of whatever race—certainly, if they be citizens— choose with the consent of their parents or voluntarily to sit together in a private institution of learning while receiving instruction which is not in its nature harmful or dangerous to the public, no government, whether federal or state, can legally forbid
their coming together, or being together temporarily[,] for such an innocent purpose.
Tokushige, 11 F.2d at 713–14 (emphasis added) (quoting Berea College, 211 U.S. at 68 (Harlan, J., dissenting)).22 We then concluded that, under Meyer, Hawaii‘s burdensome restrictions on private foreign-language schools impermissibly interfered with “the right of a parent to educate his own child in his own way,” and with the students’ “right to be taught” in such schools. Id. at 714. Tokushige thus confirms that, as traditionally understood, the Meyer-Pierce right includes the right to select a private school at which the students will “com[e] together,” “be[] together temporarily,” and “sit together in a private institution of learning while receiving instruction.” Id. at 713–14.
Here, of course, the State insists that, due to the pandemic, physical congregation of students can be dangerous, but that point goes to the question of whether the State‘s restrictions are justified under the appropriate level of scrutiny. It provides no basis for suggesting that the underlying Meyer-Pierce right does not even include the ability to choose in-person private-school instruction. It may be that the current once-in-a-century conditions present unique dangers that justify a limit on such in-person instruction, but such contingent circumstances do not establish that, for purposes of defining the Meyer-Pierce
That the Meyer-Pierce right encompasses parents’ choice to send their children to in-person schools is further confirmed by the reasoning in Pierce, Meyer, and their progeny. In emphasizing the importance of parental control over the educational forum for their children, Pierce underscored the “right of parents to choose schools where their children will receive appropriate mental and religious training.” 268 U.S. at 532; see also Yoder, 406 U.S. at 211 (emphasizing the importance of parents’ ability to ensure that their children are not “away from their community, physically and emotionally, during the crucial and formative adolescent period of life“). As the declarations in this case amply illustrate, the private-school Plaintiffs here are all strongly of the view that distance learning is inimical to the “appropriate mental . . . training” that Plaintiffs want for their children, Pierce, 268 U.S. at 532, and that it deprives Plaintiffs’ children of the physical and emotional connections they need during the formative years of their childhood, see Yoder, 406 U.S. at 211. There can be no serious question that the restrictions at issue here thus
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 under Meyer and Pierce. The only remaining question is whether that deprivation is adequately justified under the appropriate level of scrutiny.
b
Meyer and Pierce were decided at a time in which the Supreme Court had not yet articulated the various levels of scrutiny that are familiar to us today. Moreover, the Supreme Court has yet to definitively decide what standard of review applies to infringements of the Meyer-Pierce right. See, e.g., Doe v. Heck, 327 F.3d 492, 519 (7th Cir. 2003). But the Court has repeatedly characterized the Meyer-Pierce right as being “fundamental,” Glucksberg, 521 U.S. at 720; see also Troxel, 530 U.S. at 65 (plurality); id. at 80 (Thomas, J., concurring in judgment), and we have held that “[g]overnmental actions that infringe upon a fundamental right receive strict scrutiny,” Fields, 427 F.3d at 1208. At least where, as here, the challenged restriction wholly deprives the private-school Plaintiffs of a central and longstanding aspect of the Meyer-Pierce right, see supra at 45–46, the appropriate level of scrutiny therefore must be strict scrutiny.24
In Diocese of Brooklyn, the Supreme Court held that attendance caps of 10 and 25 people at indoor religious services in areas that were classified as having a high prevalence of Covid were not narrowly tailored. 141 S. Ct. at 67. As the Court explained, such caps were “more restrictive than any COVID-related regulations” that the Court had upheld; they were “much tighter than those adopted by many other jurisdictions hard-hit by the pandemic“; and they were “far more severe than has been shown to be required to prevent the spread of the virus” at the relevant facilities. Id. The same points are applicable here. By prohibiting in-person instruction at the relevant Plaintiffs’ schools, California effectively imposed an attendance cap of zero, which is much more restrictive than the numerical caps struck down by the Supreme Court for religious services in Diocese of Brooklyn.25 That alone
Moreover, Plaintiffs presented undisputed evidence that California‘s broad and lengthy closure of schools was more severe than what many other jurisdictions have done, thereby further negating any suggestion that California adopted the least restrictive means of accomplishing its compelling interest. And Plaintiffs presented evidence that California had failed to narrowly tailor its response inasmuch as it stubbornly adhered to an overbroad school-closure order even as evidence mounted that Covid‘s effects exhibit a significant age gradient, falling much more harshly on the elderly and having little impact, statistically speaking, on children. As the district court noted, Plaintiffs presented “a veritable library of declarations from physicians, academics, and public health commentators” who underscored this key deficiency in California‘s stated “basis for in-person learning restrictions.” California‘s only response to that evidence was to fall back on two relatively brief expert declarations from a CDPH official (and doctor) who did not deny the indisputable age differential in Covid impacts, but who nonetheless defended the broad school-closure ban on the grounds that, given the mechanics of Covid transmission, “[i]t is possible that in the school setting, as in other settings, asymptomatic transmission may occur.” The State‘s expert did not identify any evidence indicating that children in a school setting would present
As with its rigidly overbroad approach to religious services, California once again failed to “explain why it cannot address its legitimate concerns with rules short of a total ban.” South Bay, 141 S. Ct. at 718 (Gorsuch, J., statement).26 We certainly cannot say that, as a matter of law, California‘s “drastic measure” of closing the private
IV
Finally, we turn to the private-school and public-school Plaintiffs’ claims under the Equal Protection Clause. 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. We affirm, however, the district court‘s rejection of the public-school Plaintiffs’ claims under the Equal Protection Clause.
The public-school Plaintiffs argue that the State‘s challenged orders “arbitrarily treat[] Plaintiffs’ children . . . 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.” Classifications that do not implicate suspect classifications or fundamental constitutional rights “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc‘ns, Inc., 508 U.S. 307, 313 (1993). Because there is no fundamental right to a state-provided basic minimum public education, see supra at 31–36, the rational basis test applies here except to the extent that the State‘s orders could be said to rest on an invidious distinction that would trigger heightened scrutiny. No such distinction is present here. Without more, classifications based on the prevalence of Covid in a particular locality, such as a county, do not implicate a suspect classification. Nor does a distinction between public schools on the one hand and camps and childcare centers on the other. Consequently, the public-
The State‘s classification based on whether a public school is located in a locality with a high incidence of Covid infection is plainly rationally related to the State‘s legitimate and compelling interest in preventing Covid-related disease and death. And the State‘s classification between public schools and other facilities such as camps and childcare centers permissibly and rationally chooses to address an important problem in an “incremental” fashion. Angelotti Chiropractic, Inc. v. Baker, 791 F.3d 1075, 1085–86 (9th Cir. 2015); see also Beach Commc‘ns, 508 U.S. at 316.
V
Because the State‘s evidentiary showing was insufficient to establish, as a matter of law, that its school-closure order was narrowly tailored as applied to the five private-school Plaintiffs,27 we reverse the district court‘s grant of summary judgment to the State on those Plaintiffs’ substantive due process claim, and we remand for further proceedings.28 We remand also for the district court to consider the private-school Plaintiffs’ challenge under the Equal Protection clause in light of our conclusion that the State‘s actions implicate a fundamental right of those Plaintiffs. We
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HURWITZ, Circuit Judge, dissenting:
When Plaintiffs filed their operative amended complaint on July 29, 2020, California was dealing with widespread transmission of the deadly COVID-19 virus. The State had devised a series of measures—including suspension of in-person instruction at schools—to slow that transmission. Plaintiffs sought declaratory relief and an injunction against the orders restricting in-person instruction.
But things have changed since the complaint was filed. 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.
Despite this drastically changed legal landscape, the majority refuses to recognize that the case before us is moot. But the majority‘s mootness analysis, while incorrect, does little damage on its own. What is far more troubling is the majority‘s treatment of the private-school Plaintiffs’ constitutional claims. In finding that Plaintiffs have pleaded a substantive due process violation, the majority relies on an
I respectfully dissent.
I
The essential starting point in this case is the history and substance of the State‘s COVID-19 orders.
A
On March 4, 2020, Governor Gavin Newsom declared a State of Emergency to address the emerging COVID-19 pandemic. COVID-19 is a highly contagious virus that spreads from person to person mainly through respiratory droplets produced when an infected person—even an asymptomatic one—speaks, coughs, or sneezes. People with COVID-19 have reported a wide range of symptoms, with many suffering death or long-term health complications. At the time of the Governor‘s declaration, there was no widely effective treatment for the virus and no vaccine.
On March 19, 2020, Governor Newsom issued Executive Order N-33-20, requiring California residents to “immediately heed the current State public health directives.”
On July 17, 2020, the Department of Public Health issued its “COVID-19 and Reopening In-Person Learning Framework for K–12 Schools in California, 2020-2021 School Year” (the “Framework“). The Framework explained that “closures to in-person instruction were part of a broader set of recommendations intended to reduce” COVID-19 transmission. It allowed schools to reopen if located in a county that had “not been on the county monitoring list within the prior 14 days.” A county was placed on the monitoring list if (1) its 14-day COVID-19 case rate was over 100 per 100,000 people; or (2) both (i) its 14-day case rate was over 25 per 100,000 people and (ii) its 7-day testing positivity rate was over 8 percent. There were two notable exceptions to the school-closure order: (1) recognizing the lower risks to younger children, elementary schools in listed counties could obtain waivers to conduct in-person learning; and (2) affected schools were allowed to provide in-person instruction in small cohorts, pursuant to guidelines. Once reopened, a school was not required to close even if its county returned to the monitoring list.
On August 28, 2020, the State adopted a modified framework for reopening across all sectors (the “Blueprint“). The Blueprint noted that although “[c]ommunity spread of infection remains a significant concern across the state,” the State intended “to gradually reopen businesses and activities while reducing the risk of increased community spread.”
B
On December 30, 2020, while this appeal was pending, Governor Newsom announced the “Safe Schools for All” plan. “Informed by growing evidence of the decreased risks and increased benefits of in-person instruction,” especially for younger students, the Plan intended to “create safe learning environments for students and safe workplaces for educators,” and to “ensure schools have the resources necessary to successfully implement key safety precautions and mitigation measures.” The proposal was substantively like the State‘s prior guidance; it prioritized returning young children and those with special needs to schools, but recognized ongoing risks associated with reopening and did not lift the restrictions on in-person instruction.
On January 14, 2021, the Department issued a revised “COVID-19 and Reopening In-Person Instruction Framework” (the “Revised Framework“). It allowed elementary schools in Tier 1 counties to open for in-person classes if the county‘s adjusted daily COVID-19 case rate
On June 11, 2021, the Governor formally revoked the stay-at-home order (Executive Order N-33-20) and the order directing residents to heed State public health directives on which the Blueprint framework relied (Executive Order N-60-20). See
The State Public Health Officer soon thereafter issued an order recognizing that California “is prepared to enter a new phase” and has “made significant progress in vaccinating individuals and reducing community transmission.”
On July 12, 2021, the State Public Health Officer issued its “COVID-19 Public Health Guidance for K–12 Schools in California, 2021-22 School Year.” “The foundational principle of this guidance is that all students must have access to safe and full in-person instruction and to as much instructional time as possible.” The guidance noted that, in California:
[T]he surest path to safe and full in-person instruction at the outset of the school year, as well as minimizing missed school days in an ongoing basis, is a strong emphasis on the following: vaccination for all eligible individuals to get COVID-19 rates down throughout the community; universal masking in schools, which enables no minimum physical distancing, allowing all students access to full in-person learning, and more targeted quarantine practices, keeping students in school; and access to a robust
“This guidance is designed to enable all schools to offer and provide full in-person instruction to all students . . . even if pandemic dynamics shift throughout the school year, affected by vaccination rates and the potential emergence of viral variants.”
II
The majority‘s first error is concluding that this case is not moot.
A
“When an intervening circumstance at any point during litigation eliminates the case or controversy required by
That is precisely what occurred here. Plaintiffs seek only declaratory and injunctive relief precluding the State from preventing schools from providing in-person instruction. But they concede that there is “no longer any state-imposed barrier to reopening for in-person instruction” applicable to the schools attended by Plaintiffs’ children or the student-Plaintiff. Under the challenged orders, these schools can fully reopen and need not close again even if case rates rise. Indeed, Plaintiffs do not contest the State‘s assertion that all
B
The majority does not dispute that no relevant school is either under a closure order or can be placed in one under the challenged orders. However, it holds that this case falls within two familiar exceptions to the mootness doctrine: (1) a defendant cannot moot an action through voluntary cessation of the challenged activity, see Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013); and (2) the issues raised are capable of repetition yet evading review, see Turner v. Rogers, 564 U.S. 431, 439 (2011). Majority Opinion (“Op.“) at 24. Neither conclusion withstands analysis.
1
It is basic that “[a] defendant‘s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case.” Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 174 (2000). But that doctrine does not apply here. The State‘s purportedly unlawful conduct was enforcing a policy providing that schools may reopen and not be required to reclose if certain benchmarks are met. The State did not “cease[] that conduct at all.” See Pierce, 965 F.3d at 1090. Rather, it consistently adhered to that policy; the relevant schools just all met those benchmarks. See id. In other words, the gamesmanship concerns that animate the voluntary cessation doctrine are not present in this case. See Already, LLC, 568 U.S. at 91; see also Rosemere Neighborhood Ass‘n v. U.S. Env‘t Prot. Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) (noting that the
Even if the voluntary cessation doctrine facially applied, the case would nonetheless still be moot if the State showed it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Rosebrock v. Mathis, 745 F.3d 963, 971–72 (9th Cir. 2014) (cleaned up). The issue is not whether the State conceivably could again order schools to close. Rather, we must consider whether the State has shown that it cannot “reasonably be expected” to do so. Id. at 971 (emphasis added). The answer to that question is “yes.”
My conclusion does not rest on the premise that COVID-19 case rates will not again rise, perhaps even precipitously. Indeed, given the virulence of new variants and the continued reluctance of some to be vaccinated, a rise in case rates is sadly a real possibility. But the issue before us is not whether there will be a future public health crisis. The issue is whether the conduct challenged here, a school-closure order, is “reasonably” likely to be imposed on Plaintiffs’ schools in response to that potential crisis. And on that point, the record is compelling.
The challenged orders pose absolutely no barrier to in-person instruction at Plaintiffs’ schools. Plaintiffs’ counties are no longer subject to the challenged orders for a simple reason—case rates have dropped dramatically. And even if
The essential premise of the majority opinion is therefore that there is a reasonable chance that, sometime in the future, the State will impose new and more severe restrictions than those in the challenged orders. The State, however, has disclaimed any such intention. Its actions are in accord with its words. The State‘s guidance for the coming school year provides for reopening schools with full in-person instruction. Moreover, the State had made clear that “even if pandemic dynamics shift throughout the school year,” it does not intend to rely on broad closures, but instead on more targeted measures that would allow children to remain in school. Id. The very “foundational principle” of its guidance is to ensure in-person instruction. Id.
The majority rejects all this as a “coy assertion” because the State has in the past changed its regulations and retains the ultimate legal authority to modify its regulations. Op. at 26. But if the bare authority to enact new and different rules is alone enough to avoid mootness, no dispute against a government could be moot. Cf., e.g., Trump v. Int‘l Refugee Assistance, 138 S. Ct. 353 (2017). Indeed, although the State has changed certain aspects of the regulations, it has not strayed from the principle that reopened schools need not close again even if case rates rise. The majority fails to accord this consistency, combined with the State‘s representations as to its plans for the coming school year, the requisite deference. See Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010) (collecting cases holding that governments receive particular deference in this analysis).
2
Disputes are “capable of repetition, yet evading review” if “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (cleaned up). As with voluntary cessation, for this doctrine to apply, there must be a “reasonable expectation or a demonstrated probability,” not just a theoretical possibility, that the same controversy will recur. Id. (cleaned up).
I agree with the majority that Plaintiffs here moved with dispatch but were nonetheless unable to secure final appellate review before mootness occurred. See Alaska Ctr. for Env‘t v. U.S. Forest Serv., 189 F.3d 851, 855–56 (9th Cir. 1999). But, for the reasons explained above, I part ways with the conclusion that it is reasonable to expect this issue will recur. The State has consistently provided that once schools reopen—as all of the relevant schools can—they need not close again even if case rates rise. And given the presence of vaccines, their demonstrated utility in reducing the spread of COVID-19, and the State‘s guidance for the coming
3
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam), upon which the majority relies, does not compel a contrary conclusion. To be sure, the facts of that case have some superficial similarity to this one. Religious institutions challenged New York‘s system of COVID-19 restrictions, which used a multi-tiered “zone” system to impose capacity limits for religious services. Id. at 65–66. Although the zones containing the plaintiff institutions had been reclassified and no longer imposed the challenged restrictions, the Court—citing but not discussing cases that involve both the voluntary cessation and “capable of repetition” doctrines—declined to find the dispute moot. Id. at 68.
But Diocese of Brooklyn is critically different than this case. When the Court heard the case, the religious institutions “remain[ed] under a constant threat that the area in question will be reclassified.” Id. Indeed, New York “regularly” changed the classification of particular areas without prior notice, with eight recent changes within a period of little over a month. Id. Given the frequency of changes and the brief time available to seek relief before religious services in a given week, the Court found “no reason why [the plaintiffs] should bear the risk of suffering further irreparable harm in the event of another reclassification.” Id. at 68–69.
California‘s relatively steady and infrequent changes to its reopening plans are a far cry from the New York regulations that changed several times a week. And there is
III
The majority‘s mootness analysis, although in my view incorrect, does little damage on its own. What makes its opinion truly problematic is the conclusion that the challenged orders violate the substantive Due Process Clause as applied to parents of children who attend private schools under the “Meyer-Pierce” doctrine. See Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc‘y of Sisters, 268 U.S. 510 (1925). In arriving at that conclusion, the majority routinely sets aside governing precedent, beginning with the basic principle that “an appellate court will not consider issues not properly raised before the district court.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
A
The majority‘s forfeiture analysis begins with an incorrect premise: that whether Plaintiffs actually raised their claim below “must be understood against the backdrop of the relevant caselaw.” Op. at 37. We of course consider relevant caselaw when analyzing the merits of a claim. But whether a claim was properly raised before the district court
I begin with a review of Plaintiffs’ carefully drafted complaint. The complaint does not “generally allege[]” the denial of Due Process rights. Op. at 37. Rather, it explicitly and repeatedly asserts a violation of but one purported Due Process right—a right to a basic minimum education:
- “Plaintiffs and their children have a fundamental right to a basic, minimum education. Defendants have deprived Plaintiffs and their children of this right in violation of the
Fourteenth Amendment to the U.S. Constitution , by effectively precluding children from receiving a basic minimum education[.]” (emphasis added). - “Defendants lack any compelling, or even rational, interest for burdening Plaintiffs’ children of their fundamental right to a basic minimum education.” (emphasis added).
- “In Defendants’ rush to enact these new restrictions, they have placed special interests ahead of the wellbeing of the children, and children‘s fundamental right to receive a basic minimum education.” (emphasis added).
- “[T]he Court should not hesitate to ensure that Plaintiffs’ fundamental rights in securing a basic minimum education for their children are preserved and protected from Defendants’ arbitrary actions.” (emphasis added).
Plaintiffs’ district court briefing is no different. Their briefs allege a single due process violation predicated on a claimed right to a basic minimum education. In claiming that their briefing raised a Meyer-Pierce claim, Plaintiffs identify only a citation to Meyer in a portion of a brief arguing for the right to a basic minimum education. A review of the full context of that citation demonstrates that it did not raise a separate Meyer-Pierce claim:
A. The Order Violates the
Fourteenth Amendment Because it Infringes Fundamental Rights and Is Not Narrowly Tailored to Advance the Government‘s Interest in Combatting the Spread of COVID-19Education is a Fundamental Right. State-provided education is “deeply rooted in this Nation‘s history and tradition” and is “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). Any infringement of the right to basic minimum education—or discrimination that deprives certain groups of that right—is thus subject to a “heightened level of scrutiny.” United States v. Harding, 971 F.2d 410, 412. n.1 (9th Cir. 1992).
And while Defendants contend that “no court has recognized a fundamental right to a
basic education” (Resp. 14), Plyer and Rodriguez demonstrate that any infringement on the right to basic minimum education must be met with at least heightened scrutiny. Plyler v. Doe, 457 U.S. 202, 221 (1982); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36–37 (1973). Moreover, the “identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2016). In all events, education is at least a “quasi-fundamental right” under settled precedent. Harding, 971 F.2d at 412 n.1. Courts have long held that pupils have a “right to be taught,” Farrington v. Tokushige, 11 F.2d 710, 714 (9th Cir. 1926), aff‘d, 273 U.S. 284 (1927), and that parents have a right “to control the education of their” children. Meyer v. Nebraska, 262 U.S. 390, 401 (1923). The very concept of “liberty,” “[w]ithout doubt, [ ] denotes . . . the right of the individual . . . to acquire useful knowledge.” Id. at 399. Any burden on the right to education thus raises heightened scrutiny. See Carmen Green, Educational Empowerment: A Child‘s Right to Attend Public School, 103 Geo. L. J. 1089, 1127–28 (the test utilized in Meyer is “most similar to today‘s intermediate standard of review“).
(second emphasis added). Not convinced? Take Plaintiffs’ word for it:
Defendants mischaracterize Plaintiffs as advocating for a “fundamental right to in-person school.” Resp. 17. Plaintiffs’ actual argument is that “the
Fourteenth Amendment of the United States Constitution [ ] protects Californians’ fundamental right to a basic minimum education,” TRO at 2, and that the Order infringes that right because distance learning has proved woefully inadequate. See id. 7–9.
Indeed, despite the district court‘s invitation for supplemental filings when it was considering whether to grant summary judgment, Plaintiffs did not present any distinct argument that a Meyer-Pierce right was being asserted, again merely citing these cases in passing. When the court granted summary judgment without mentioning a Meyer-Pierce claim, Plaintiffs did not request reconsideration. See Young v. Hawaii, 992 F.3d 765, 779–80 (9th Cir. 2021) (en banc). And Plaintiffs candidly conceded at oral argument that they cannot and do not fault the district court for not addressing that claim.
However charitably read, Plaintiffs’ filings below simply did not offer the argument that the school closure orders infringed the parents’ substantive Due Process right to control their children‘s upbringing. The only argument raised by Plaintiffs’ quite able counsel was that all children—those attending public and private schools alike—were being denied a right to a basic minimum education.
Unhappy with the record, the majority creatively reimagines Plaintiffs’ district court filings, concluding that because some of the children had opted out of a state-provided education, they “necessarily” raised a Meyer-
B
Perhaps recognizing that the Meyer-Pierce argument was never raised below, the majority alternatively concludes that we should exercise our discretion to hear it. But, although we can forgive forfeiture under certain circumstances, see AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1213–14 (9th Cir. 2020), there is a fundamental reason not to do so here. The “cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. Drug Enf‘t Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and in the judgment). That principle applies in force here.
We might exercise our discretion to reach this forfeited issue if it would impact Plaintiffs’ ability to attend school today or tomorrow. But it will not. Their schools can reopen and need not close again even if case rates rise. I might also understand the need to forgive forfeiture if this were a recurring question. But it is not. The restrictions here were the product of exceptional circumstances, and, largely for the reasons detailed above, are unlikely to recur. The majority‘s ruling is therefore tantamount to an advisory opinion. And
IV
Having ignored all stop signs, the majority speeds on to the merits of the Meyer-Pierce claims. That is its biggest mistake. The majority errs in both (1) finding that the narrow Meyer-Pierce right protects a parent‘s choice of a particular mode of education and (2) concluding that any law impacting the Meyer-Pierce right is subject to strict scrutiny.
A
Because the majority‘s analysis of the Meyer-Pierce claims rests largely on out-of-context quotations from Supreme Court decisions, it is useful to begin with a review of what the relevant cases actually hold.
Meyer involved a teacher‘s challenge to his conviction under state law for unlawfully teaching German to children at a parochial school. 262 U.S. at 396–97. In reversing that conviction, the Court explained that the
Pierce considered a challenge by an Oregon corporation that operated private schools to a law requiring attendance of all students at public schools. 268 U.S. at 531–32. The Court reiterated that “[n]o question is raised concerning the power of the state reasonably to regulate all schools” or “to inspect, supervise and examine them, their teachers and
Wisconsin v. Yoder considered a challenge by three Amish parents to convictions for refusing to send their children to public school in violation of state law. 406 U.S. 205, 207–09 (1972). Although affirming the Wisconsin Supreme Court‘s reversal of the convictions, the Court once again emphasized that “[t]here is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education.” Id. at 213.
Runyon v. McCrary considered whether
[T]he present application of
§ 1981 infringes no parental right recognized in Meyer, Pierce, Yoder, or Norwood. No challenge is made to the petitioner schools’ right to operate or the right of parents to send their children to a particular private school rather than a public school. Nor do these cases involve a challenge to the subject matter which is taught at any private school. Thus,the [schools] remain presumptively free to inculcate whatever values and standards they deem desirable. Meyer and its progeny entitle them to no more.
Id. at 177. The Court later reiterated this narrow reading and again emphasized that the right does not prevent states from reasonably regulating schools:
The Court has repeatedly stressed that while parents have a constitutional right to send their children to private schools and a constitutional right to select private schools that offer specialized instruction, they have no constitutional right to provide their children with private school education unfettered by reasonable government regulation. Indeed, the Court in Pierce expressly acknowledged “the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils . . . .”
Fields v. Palmdale School District, 427 F.3d 1197 (9th Cir. 2005), re-affirms these well-established principles. The plaintiffs sued a school district for teaching sexual topics, asserting their right to control their children‘s upbringing. Id. at 1204–05. We recognized the Meyer-Pierce right to direct one‘s child‘s upbringing but emphasized that it is “not without limitations.” Id. at 1204. We affirmed the holdings, repeated in each of the above cases, that the State may subject this right to “reasonable regulation.” See id. Indeed, we further held that “once parents make the choice as to
B
The majority nonetheless reads the Meyer-Pierce right as protecting a parent‘s right to choose a specific mode of education. But, as one of our colleagues has aptly noted, Meyer and Pierce were products of “complex forces.” Jay S. Bybee, Substantive Due Process and Free Exercise of Religion: Meyer, Pierce and the Origins of Wisconsin v. Yoder, 25 CAP. U. L. REV. 887, 891 (1996). The Supreme Court has instructed us to read those decisions narrowly, explaining that Meyer protects a parent‘s right to choose a child‘s curriculum, and that Pierce protects a parent‘s right to choose a school for the child. Runyon, 427 U.S. at 176–77; see also Norwood v. Harrison, 413 U.S. 455, 461 (1973) (stressing “the limited scope of Pierce“); see also, e.g., Ohio Ass‘n of Indep. Sch. v. Goff, 92 F.3d 419 (6th Cir. 1996) (“The Supreme Court has held that parents have a constitutional right to send their children to private schools and a constitutional right to select private schools that offer specialized instruction.“). Neither right is at stake here: Plaintiffs freely chose the private school of their choice and do not complain about state interference in the substance of what those schools teach.
If pupils, of whatever race . . . choose with the consent of their parents or voluntarily to sit together in a private institution of learning while receiving instruction which is not in its nature harmful or dangerous to the public, no government, whether federal or state, can legally forbid their coming together, or being together temporarily for such an innocent purpose.
See Op. at 46–47 (quoting Tokushige, 11 F.2d at 713–14). The decision plainly involves the decision to operate a private school, not whether that school is then subject to generally applicable non-discriminatory health regulations.
C
Even assuming the Meyer-Pierce right protects in some fashion a parent‘s right to select in-person education during a pandemic, the majority errs in concluding that all laws impacting that interest must survive strict scrutiny. The Supreme Court has repeatedly emphasized that the Meyer-Pierce right remains subject to “reasonable” state regulation. Meyer, 262 U.S. at 403; Pierce, 268 U.S. at 534–35; Yoder, 406 U.S. at 215; Runyon, 427 U.S. at 178. We have said the same. Fields, 427 F.3d at 1204–05; Hooks v. Clark Cnty. Sch. Dist., 228 F.3d 1036, 1042 (9th Cir. 2000). Applying strict scrutiny whenever a Meyer-Pierce interest is at stake vitiates this controlling precedent. If every regulation touching on a Meyer-Pierce interest must survive that heightened review, a host of “reasonable” regulations would not survive, as there might be a less drastic means of achieving the state‘s purpose.
In finding that strict scrutiny applies, the majority again elevates isolated language of opinions over their actual holdings. That the Supreme Court has described the right as “fundamental” does not allow us to disregard its repeated injunctions that the right remains subject to “reasonable regulation.” Indeed, even when presented with an
The correct question to ask in reviewing the challenged orders is simply whether they are “reasonable.” That they are is a point the majority does not—and cannot—dispute; indeed, it implicitly accepts that conclusion in rejecting the claims of the public-school Plaintiffs. See Op. at 53. We must be particularly deferential in the context of the COVID-19 pandemic, as we “are not public health experts and . . . should respect the judgment of those with special expertise” in this area. Diocese of Brooklyn, 141 S. Ct. at 68 (2020). California imposed the challenged orders to protect its citizens from a pandemic. Relying on established scientific consensus about how the virus spreads, California temporarily restricted in-person schooling alongside a host of other activities. These restrictions have now largely been lifted as the threat of the pandemic has waned. The challenged orders can thus hardly be said to be unreasonable, and, as a result, should be upheld.
I respectfully but emphatically dissent.5