Litigation Update: Brach v. Newsom

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nicholas Marr:  Welcome, everyone, to this Federalist Society virtual event this afternoon, August 26, 2021. We’re having a litigation update in a case called Brach v. Newsom. I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our experts. The call will be recorded and posted later as a podcast and on YouTube for those who weren’t able to attend live.

 

      I’m just going to give some short introductions so that we can get right to the program and then we’ll go away. Before I do that, a quick note for our audience, if you are tuning in live, please submit your questions if you have them -- hopefully you brought them -- via the chat function. You can submit to the chat or the Q and A chat. Our moderator will pick them up when we get to that portion of the call. But we will be looking to you for questions, so please submit them.

 

      So with that, I’ll give some quick introductions. We’re joined today by Robert Dunn. He’s a partner at Eimer Stahl and a litigator involved in this case. We’re joined, as our moderator, by Judge Jennifer Perkins of the Arizona Court of Appeals. And so we’re very pleased to have both of our experts and guests here today to cover this case––a really interesting case.

 

      With that, Judge Perkins, I’ll give the floor to you.

 

Hon. Jennifer Perkins:  Thank you, Nick. And thank you for giving us the opportunity to talk about what really is quite an interesting case for a variety of reasons, not least of which is the main subject matter––, the contours and implications of the right to an education and what that has meant over the last couple of years in particular. The case also raises some interesting––or at least for law nerds like me––interesting issues like mutinous and waiver and standards of review and all of that fun stuff. So, I’m glad that we have Robert here to help us walk through that.

 

      To kick us off though, I wanted to ask, Robert, if you could give us just a little bit of the factual and procedural background before we get to the Ninth Circuit’s recent panel opinion.

 

Robert Dunn:   Absolutely. So like many stories, ours begins in a lab in Wuhan, China, but we’ll fast forward after that a little bit. As folks know, the pandemic hit California in March, and one of the many things that Governor Newsom immediately did was close schools, like most states across the country. And so in March, as many of you know who have kids, we sort of embarked on this experiment of distance learning. And it was quickly apparent that that was largely ineffective, in some cases just non-existent, disastrous, especially for public school kids. That was sort of the -- what came out immediately is there were hundreds of thousands of children that really had no contact with their schools whatsoever once district learning started, either because they didn’t have the technology or the school didn’t know how to do it or they just didn’t have the parental assistance. So that was sort of the experience in the spring. I think it was widely recognized that this was a disaster.

 

So as the summer hit – so, there was an expectation that schools were going to do what they needed to do to get open in the fall of 2020. And so, really, every school started to make preparations. Some of our clients attend private schools and they went above and beyond to try to figure out how they could put in place protocols to open. Public schools started doing the same thing. But in California we had, like many other states, a second wave of COVID that hit in July—late July—tailing out in early August. And essentially, what happened is a bunch of the public school’s districts, under pressure from the teacher’s unions, basically, dug in their heels and said, “We are not going to open this fall.” And so, we had announcements coming out from LA Unified and some of the other large school districts that just said, “We’re not opening.”

 

So that put the governor in a little bit of a bind because, in California, funding follows the students in terms of the public schools. So, if enrollment drops in a public school, for example, they lose funding. And there was now a significant risk that there was going to be a mass exodus from public schools to private schools because the private schools need to open. Right? You know, if parents aren’t paying tuition, they go bankrupt. And private schools pride themselves on providing this quality, in-person, character formation, in many cases, for religious schools, that type of an education. And it just can’t be done remotely even though many of them, maybe, had more of the technological capacity than some public schools.

 

So at any rate, the governor was now faced with a situation where it was entirely possible that students were going to leave the public schools and once they leave, some of them might not have come back. So it was political crisis time there. And so the response from the governor was just to close all schools. So it sort of eliminated, really, the ability of private schools to compete by offering in-person education.

 

So, in late July, the governor issued an order that just said, “No school can open this fall if they are in county that is on our county monitoring list." So, at that point, there was a -- basically, the state was tracking each county, different metrics, hospitalizations, cases -- most of it was tied to cases. And at that point, every county was on the monitoring list. And the rule was, basically, if you aren’t -- if your county is on the monitoring list, you can’t open and you still can’t open for 14 days after it’s off. So it has to stay off.

 

So at that point, folks looked around and realized some of these schools are not going to open for a long time because some of these counties applied case counts and it looked bad. So, our co-counsel in this case, the Center for American Liberty––which has really done some amazing work in this kind of liberty space in California in particular––they looked around and said, “This has to stop.” So they recruited a bunch of plaintiffs––basically, parents of kids who had a horrible experience in the distance learning in the spring––to file this lawsuit. And as they gathered plaintiffs, we ended up with many public school -- parents whose kids go to public school and then also parents whose kids go to private school. So the case ended up being a mash-up of both.

 

Now, as the case was originally filed -- we filed it in July -- I think July 27^th of 2020. So it was within a week of the governor’s order -- or 10 days of the governor’s order. And we knew there was going to be a bunch of litigation on this. So we needed to get it started immediately. And so the original claims that were asserted in the case were substantive due process -- that’s the one we’ll probably talk about most commonly here -- which for a Federalist Society group, is always a fun topic. And as a Federalist Society member myself, that put me in an interesting spot, asserting substantive due process claims. But in this case, we thought if there was ever a time for the court to finally say what it has, sort of, danced around for many years -- is that there is a substantive due process right to a basic minimum education -- this would be the case to do it because it was clear that that was being completely destroyed—that many of these kids were getting no education and whatever they were getting, would not qualify as a basic minimum education.

 

So we asserted claims under substantive due process, equal protection––there was obviously differential treatment of the counties––and then a host of disability rights claims, too, because the state’s plan just trampled on IEPs—the Individual Education Plans. And there were several of our kids who have IEPs––some of our plaintiffs who have IEPs––and the schools had, really, no plan to follow those. They were just getting completely destroyed. So we asserted some claims under ADA and other IDEA disability rights statutes. So that was, sort of, how the case got teed up.

 

We, obviously, filed for a TRO right out of the gate in Central District of California and -- so we were down in LA Federal District Court. The court denied the TRO, basically, on the ground that this was all under rational basis. So the court said, “You have no fundamental right that we can see, that I can see, and so it’s all rational basis.” So, in support of our TRO, we had argued this should be subject to some sort of heightened scrutiny -- we said strict scrutiny but, really, anything. And we had put in dozens of expert declarations.

 

The experts, kind of, came forward. I don’t think any of them were paid. They were all just concerned and experts in the field, and they provided abundant evidence that schools could be opened safely. They provided evidence that kids are not at serious risk from the disease. They contract it, but hardly ever are adversely affected––or seriously affected by it––and even more importantly, that they don’t transmit the disease to adults in any sort of significant number.

 

And this was based on studies that have been going on all over the world for the past -- for, basically, six to eight months -- and it was all pretty unanimous. Schools in Europe, for example, had been opened over the summer, and many of them were even unmasked. And there was data, at this point, showing that that had not caused massive outbreaks either among the students or the teachers. The teachers were, basically, contracting the disease at the same rate as the general public.

 

So we had put in all of that data and the state, in response -- it basically said, “We don’t really think we need to respond to any of that because we think it’s all rational basis and we clearly have a rational basis here.” And so they’d thrown in one declaration from a public health official here who cited zero studies and basically just opined it’s possible that transmission could be the same in schools as elsewhere. It’s possible. And that was, really, the sum extent of their expert testimony.

 

And they didn’t rebut any of the testimony that we had put in showing how distance learning is devastating to children. We had child psychologists, teachers, parents, doctors all submit declarations showing distance learning is, A), academically just a disaster. You put kids in front of computer screens all day and there’s studies that show that that produces brain-imaging results similar to people on cocaine. That’s what we’re doing to our kids is just sticking them in front of screens all day. They’re just staring at computers. That’s devastating. They aren’t being able to progress academically.

 

And then, as you all are well aware, distance learning has really sparked a mental health crisis among kids. Teen suicide rates have shot up, anxiety, depression. So we put in all sorts of testimony. The state said nothing about that other than, “Hey, we’ve put a lot of money in the budget this year to make distance learning better.” I have no idea where that money went – like much of the money in California. I pay a lot of taxes here. I have no idea where most of it goes. But they basically -- that was their response is, “Hey, we’re shoveling five billion dollars or something at this problem. That should make it all go away.”

 

So that’s where we were. The district court denied the TRO and then promptly sua sponte. They didn’t even move for it. He granted summary judgement to the state on his own initiative. So, there were no actual summary judgment motions, but we did file some briefs at his request. And so, unlike many of the other COVID cases that I have worked on and that the Center for American Liberty worked on, instead of appealing a PI denial, we actually had a final judgment in the case, which I think was helpful when it came time to appeal. So we were just appealing the grant of summary judgment to the state. So that’s where we ended up.

 

We eventually jettisoned the disability rights claims because in early September, the state basically made a concession. It allowed what they called cohorts to gather—so, up to 14 students could be in person at a school for specialized learning. And the way we read the cohorting guidance -- it basically allowed schools to satisfy the terms of IEPs. Many of them didn’t do it, but that wasn’t because the state was prohibiting them. That was just because they didn’t do it. They didn’t have the resources or the desire. So, from our perspective, that needed to be worked out locally with individual schools, but it was no longer a state problem.

 

So as the case came to the Ninth Circuit, it really focused on substantive due process and equal protection, and the claims, more or less, merged into one. So that’s kind of how we ended up in the Ninth Circuit. And Judge, I don’t know if you want to sort of frame the discussion from there. That’d be fine.

 

Hon. Jennifer Perkins:  Sure. Just to step back a little bit -- but one of the things that I noticed from the beginning––both the media about case and then reading the Ninth Circuit opinion––was this anomaly that there had been no motion for summary judgment. And I know that -- and we’ll get to it a little bit later but just to put, kind of, out there -- there’s this concern about waiver and whether or not your clients properly put forth all of the arguments that they had before the district court. But it seemed very unusual to me to be holding your feet to the fire in that framework when this wasn’t even a traditional summary judgment process– in terms of gathering of evidence, putting forth of evidence, refining, perhaps, affidavits that would have been part of the complaint process -- to then make them part of the summary judgment. So we may want to get into that a little bit with the waiver discussion.

 

But as I understand it, you’re up before the Ninth Circuit Panel––remote arguments and everything––and you have two sets of plaintiffs and two sets of arguments, but all of them, kind of, coalesce into the same general principles about the educational right. So, maybe if you could talk a little bit about, first, that core legal argument that you were bringing to the Ninth Circuit.

 

Robert Dunn:  Yeah. So, by the time we got to the Ninth Circuit, we had crystallized what we wanted to argue. As you noted, everything was light speed in the district court and we sort of got our knees cut of right away when the court decided to grant summary judgment out of the blue. But as we got to the Ninth Circuit, we realized we need to be very clear about how we’re framing these arguments so that the court can see what we’re doing.

 

And what we realized is we need to be more, I think, distinct than we had been in our quick summary judgment -- or preliminary injunction papers -- which is we have public school students who have a claim under the substantive due process theory, and we have private school plaintiffs. And the precedents for those two are actually very different. So, for public schools, the Supreme Court has never held that there is a substantive due process right or a fundamental right to a basic minimum education.

 

Now, there are several precedents where the Court has talked about how important education is and how it’s quasi fundamental -- you use that language. The Ninth Circuit has used that language. And it has also specifically said, “Look, we’ve never held that it’s not fundamental.” So it sort of continued to hold the door open. There’s been several dissenting opinions in the past that have said, “We think it is fundamental.” Justice Marshall was one of them. So, our position was, like, “Look, this isn’t foreclosed.” The Ninth Circuit has the opportunity, if it wants, to, essentially, announce that and this would be the case to do it because it is so clear that the state is effectively foreclosing that for hundreds of thousands -- or even millions of students.

 

So we put forward the full substantive due process arguments. It’s grounded in history. We looked back to the founding, the importance of public education, John Adams’s papers after the ratification. Basically, all the states essentially adopted mandatory public education statutes that suggest strongly that this is a fundamental right, and it’s, basically, essential to ordered liberty. That’s one of the other aspects that the court looks at. And we said, “That’s clear. This has been stated many times that an uneducated people can’t survive in a republic.” If you want to have a republic, you need educated people. So it is absolutely fundamental to ordered liberty.

 

So that was the argument that we made that the court has not foreclosed and there are good reasons to, essentially, recognize the right. And the Ninth Circuit has not been shy about recognizing new substantive due process rights as everyone -- Hollingsworth v. Perry -- which folks nationwide maybe think of more of Obergefell -- but the gay marriage stuff, that was the Ninth Circuit. They came out strongly and said, “Hey, substantive due process.” So, we actually leaned on that precedent quite heavily because, unlike most other substantive due process rights, the right we were asking for does have more of a benefits component. Many substantive due process rights are just, “The state can’t interfere with what I want to do privately.” And this obviously requires the state to actually provide some benefit to the person. So we said, “Look, the Court has crossed that bridge.” In Obergefell it said, “There’s all of these benefits that are conferred with marriage and the state needs to confirm them. It can’t withhold them from same-sex couples.” And so they said, “Look, that precedent means that substantive due process rights can’t only be confined to areas where the state is denying you something.”

 

So that was one basket. And then the separate basket was, “Look, we have all these private school plaintiffs––or parents whose kids go to private school––and they’re not asking the state to provide a benefit. They’re asking the state to get out of the way and to stop blocking them from providing that education to the children through their private schools. And in that case, there is a lengthy pedigree going back to Meyers v. State of Nebraska and Pierce v. Society of Sisters where the Court has said there is a substantive due process right—a fundamental right for parents to direct the education of their children, to send them to private schools -- so, the state can’t prohibit private schooling -- and to control how those private schools educate their children.

 

      So, we made those two lines of argument very distinctly because we think the precedents are just different. They’re both substantive due process, but we wanted the court to be clear that there were two separate arguments. So, the court dealt with those differently. I don’t know if you want to follow up from there, Judge, or . . .

 

Hon. Jennifer Perkins:  Well, I guess -- just looking at our time, we’ve already got a couple questions that I’m going to come back to when we get to the question time. Let’s talk very briefly what the majority said with regard to those claims because we do want to get a little bit of time on the dissent and next steps before we jump to questions.

 

Robert Dunn:  Yeah. So, Judge Collins wrote the majority opinion. Judge Hurwitz was in dissent, and we had a Sixth Circuit visiting Judge Siler who joined Judge Collins. With respect to the public-school children, it was a fairly quick kick to the curb. The court basically said, “Look, the Supreme Court’s never recognized it.” It drew the distinction very clearly between benefits conferred and, essentially, interference by the state and private activity and said, “We’ve never recognized something that looks so much like a benefit as public school does.” And one of the interesting things the majority said is, “If you recognize this, you have basically headed down the road of saying, 'You have a substantive due process right to housing and food and, essentially, all your basic needs.’” And the court has repeatedly refused to do that just because it ends up getting the court enmeshed in controlling -- micromanaging the state’s provision of benefits. So the majority wanted nothing to do with that.

 

The dissent, who I think is probably more sympathetic to substantive due process generally, also agreed there’s no substantive due process right. And so what that meant is it was rational basis, and nobody had ever contested that the state had a rational basis for closing schools. As the expert said, “It’s possible that the transmission could occur in schools.” So we have never contested it on rational basis. There would have been no point.

 

      But with respect to the private school plaintiffs, I think the court very reasonably and correctly said, “Look, if you have a right to send your kids to private school, to control that education, that has to include the right to send your kids in person to that school.” In fact, that’s the only way private schools have ever operated in this country or, really, in the world. Until extremely recently, did you even have the theoretical possibility of having anything other than in-person education. So the right has to encompass in-person education.

 

And as our experts had put out in detail, distance learning is not the same thing. It is not a substitute. It is a fundamentally different type of education and it is not the type of education that parents had chosen for their children. And in fact, several of our plaintiffs had moved their kids from public to private specifically because the in-person component was fundamental. It was central to the educational experience. So the court said, “Look, if this Meyer v. Pierce right means anything, it has to mean that the state can’t, essentially, bar the door to your kids’ classroom. It can’t just be you have the right to enroll your student, like, put them on the register, but then he has to take correspondence classes or something. That can’t be the right.

 

And so since that is within the core of the Meyer v. Pierce right, this has to be subject to strict scrutiny. And the state had never made any effort to satisfy strict scrutiny. So, just like we had really said, “Well, we can’t win on rational basis,” I think the state had, more or less, conceded it couldn’t win on strict scrutiny, which, of course, it couldn’t because all of the scientific evidence was in our favor, which the state ultimately admitted in December. That was, sort of, a fun aspect of the case was -- the governor announced the safe school opening plan in December and they cited all the same experts that we had cited in our declarations back in August. So it was like, “Oh, we’ve decided that schools can be safely opened.” And they would cite studies from Israel and Germany and Iceland. I’m like, “We cited those studies in August, but you didn’t listen to them.” So they couldn’t satisfy strict scrutiny. And so that’s how we ended up winning those claims. The court basically reversed summary judgment as to the private school plaintiffs. So, pretty much [inaudible 23:04] dissent . . .

 

Hon. Jennifer Perkins:  Yeah. So, that’s our majority.

 

Robert Dunn:  Yeah.

 

Hon. Jennifer Perkins:  Judge Hurwitz, before getting to his disagreement with the substantive due process, brings us to these interesting procedural mootness and waiver. And the mootness issue, kind of, does tie into the question we have pending. And I’ll go ahead and let you know, just in summary, our questioner is asking about substantive due process in the context of this shifting situation on the ground—the variable moment-to-moment changes on the ground due to the nature of COVID and the changes here and there on what is science, and what is the science that we care about today or tomorrow. How does that impact bringing a substantive due process claim? So we’ll get to that, but that, I think, goes directly to Judge Hurwitz’s concern about mootness.

 

Robert Dunn:  Yeah. So, the case was argued March 3^rd or something -- the first couple days of March, I can’t remember exactly. And at that point, there were still several of our plaintiff schools that were not open. So it was the same essential orders that had been in place since August, and these counties had just never moved out of Tier 1, which was the new framework. So by the time the case was argued, I think it was undisputed that it was live, and the state didn’t say anything to the contrary in argument. But over the course of the spring, all of the counties in California eventually moved out of Tier 1, and, thus, schools were allowed to open. And so the court asked for supplemental briefing, I think in May, and said, “Hey, tell us about mootness. And is the case moot? Is the case live?”

 

So, we argued, and the majority ultimately agreed, that even though all of the schools could still open. So, under straightforward mootness doctrine, it did look moot. But as you guys know, there are two well-established exceptions to mootness and we argued both of them applied, capable of our petition, abating review, and voluntary cessation. And our point was, “Look, we have gone as fast as we possibly can in this case, and our claims are going to be mooted unless you apply one of these two exceptions. And this is going to happen again and again. If the state does the same thing -- if the governor does the same thing for the 2021/2022 school year, we’re going to be in the same boat. We’re going to have rushed litigation and likely have our claims all be moot before we get resolution.

 

So that raised the question, “Is it capable of repetition? Is it likely to reoccur? Is it a reasonable probability?” And Judge Collins said, “Yeah, it sure looks like it. The state of emergency exists. The governor has not revoked his emergency powers, which means he can close schools tomorrow under his executive orders.” Had he revoked the state of emergency, it might be different, but he hasn’t. And he specifically refrained from saying that he is taking anything off the table. So, he’s said that they’re committed. The state has said it’s committed to in-person education. I would hope they are. I would hope they were always committed to in-person education. So to me, that doesn’t move the needle. They should be committed to in-person education. That didn’t stop them from closing schools for basically a year––from March to March or March to April in some cases––and it’s going to evade review. So we said that.

 

And then with respect to voluntary cessation, both our briefing and the majority relied heavily on the Supreme Court’s recent opinion in Roman Catholic Diocese v. Cuomo, where we had, sort of, a similar thing where we had tiers and the cities were moving in and out of -- from red tier to orange tier, but they could move back. And our position was, “Look, the governor could put us back into a different tier.” It’s slightly different because it was a little more automatic based on criteria, but the criteria had been changed throughout the course of litigation, and nothing stopped him from changing the criteria again.

 

So that was, basically, our point, and the majority agreed. Judge Hurwitz was -- I think this was probably his most emphatic point of disagreement as he did not think either of those existed. He thought it was absolutely unlikely that the schools would ever close again and that he didn’t think voluntary cessation applied just because it was based on criteria—schools moving -- their counties moving from one to another.

 

With respect to whether it was likely that schools would reopen, both Judge Hurwitz and the state made a big deal about vaccinations being game changers and how this was going to solve all the problems, which looked, I think, maybe more reasonable back in May and then even in July when the opinion came out. But California is going through a huge surge right now. Our vaccinations are about 65% of folks are fully vaccinated and we’re still having -- our hospitalizations and cases are much, much higher now than they ever were last summer, which is sort of remarkable. They are actually, at this point, substantially higher. They’re not near where they were in the winter when things got really bad here, but they’re higher than they were last summer.

 

So, to the extent that the argument the state and the dissent made that while vaccinations are going to solve this and keep everyone safe, that looks increasingly like a bad argument. And we’ve seen school districts across the country -- we saw recently, Chicago Public School District, essentially, threatening to close because the teacher’s unions are, again, pushing it. Teachers are worried. And the same thing could happen here. So, from our perspective, there really is nothing preventing the governor from redoing this. And that’s why the claims are not moot.

 

Hon. Jennifer Perkins:  I don’t know that we really need to talk too much in-depth about waiver because we did already hit that a little bit on the unusual nature, but that was another of Judge Hurwitz’s big concerns was -- and I’d watched the oral argument. He really was detailed in walking through some of the lower court pleadings. So, was there anything about the waiver issue that is unique in this case that you wanted to share with the audience before we move on to anything further substantive about the dissent?

 

Robert Dunn:  I think the only thing that was unique about it is, from our perspective––and I think Judge Collins agreed at the end––is that whether the complaint sufficiently clarified the public-school-versus-private-school aspect of our substantive due process claims -- clearly the claims fall under that legal theory, and clearly the private school plaintiffs -- really, they only have that theory. So either they were making incoherent claims or their claims should be construed in their favor, and especially given the situation and the rush of the filing. Our view is always, of course, these should be generously construed in favor of the plaintiffs.

 

And then, I think Collins was right; at the end of the day, it is a purely legal argument because there was no dispute either over whether the state could satisfy strict scrutiny or whether rational basis applied. Really, the whole argument here is, “Does this school closure fit within the scope of the Meyer v. Pierce right?” And that is, effectively, a legal argument because once the court had decided where the precedent fell, the case was, more or less, resolved. There was no need to remand for further developments because they put in their record, we put in our record, and they’ve made no effort to satisfy strict scrutiny.

 

So that was really the whole fight. And Judge Hurwitz -- one of his major points is he doesn’t think strict scrutiny applies even in the context of the private school plaintiffs. And the state has now doubled down on that theory in their en banc petition. Their view is that even if there is this fundamental right, it should be subject to rational basis. I think that would destroy the right. I think if the court actually did that it would effectively be erasing 100 years of Supreme Court precedent because, at that point, a state could, again, ban people from going to private school as long as it has a rational basis. And the court has never said that, and that is, sort of, contrary to how every other fundamental right is treated in the law. But again, that is a purely legal question, and so, as Judge Collins says, “Look, even if this wasn’t perfectly presented to the district court, we could reach it because it is purely legal, and it was necessarily decided.”

 

Hon. Jennifer Perkins:  So, just briefly on the dissent -- substantively on the substantive due process right -- I think you’ve articulated a little bit that the state has picked up that thread in the en banc process, but was there anything about Judge Hurwitz’s dissent and his rejection of Judge Collins’s reading of Meyer v. Pierce that you wanted to point out?

 

Robert Dunn:  I think the dissent took an unnatural and unreasonably narrow reading of Supreme Court precedent. I don’t see how his view possibly comports with Meyer v. Nebraska, for one. Because his view is, essentially, you have the right to send your kid to a private school and, more or less, nothing else. And Meyer v. Nebraska -- I don’t know how you square with that because in that case, it wasn’t -- there was no question that folks could send their kids to private school. The question was, “Can this school teach your kids in German?” And that was a rule that applied across the board. It wasn’t a targeted rule at private schools. It applied to public schools, too. So, these parents had the right to send their kids to a private school and they could get much of the education that they wanted but they couldn’t get in German. And the court said, “No, that’s too much interference with, essentially, the method of education or the way in which these kids are supposed to be educated according to their parents’ wishes. It’s interfering with the parents’ ability to direct the education of their children.”

 

So, I think the majority is absolutely correct. This case is just squarely governed by Meyer because that is precisely what is going on here -- and I think is even more extreme where the state is interfering with the school’s ability to provide the exact type of education that parents are paying for, that they have selected private schools to educate their children. And so it’s, really -- our fight in the en banc petition is all about, “Is this a new right that Court recognized, or is this just a straightforward application of a recognized right?” And from our perspective, there was nothing novel here. The only thing that was radical was the state’s closure orders. That was what was radical. It wasn’t -- nothing the panel opinion -- the panel majority did here was novel or groundbreaking. It was dealing with a novel situation, but it wasn’t breaking new ground legally.

 

So that’s sort of a -- that’s one of the big schisms between the majority and the dissent is the dissent thinks the majority is, essentially, opening the door to all sorts of challenges. So, as the state has basically put it in its en banc petition -- how they read the panel majority is, “Oh my gosh, the private schools now have effective immunity to all sorts of government regulations like building codes and cafeteria health protocols and disability access. I do not know how you get that out of this opinion. Nothing that Judge Collins says in this opinion would indicate that a private school is now free of building code regulations. It could say, “Whoa, whoa, whoa, substantive due process of parents not to have -- to have unsafe structures at their school or no wheelchair ramps or whatever it may be.” So, they’re obviously trying to create a justification for why the court should take the case en banc. I mean, in my view, it is heavily contrived, and it’s one of those kind of parade of horribles that you scratch just a little bit and you realize it’s totally ridiculous.

 

Hon. Jennifer Perkins:  Yeah. I thought Judge Collins did -- I think it was in the opinion; it may have been an argument -- did a good job of talking about how, in comparison with the Diocese case, the issue was the complete inaccess- -- the complete shutdown. It wasn’t a gradation. And the Diocese case involved those very arbitrary and restrictive gathering number requirements. And so it’s hard to see that as the same thing as these building code regulations around the edge, so that’s interesting.

 

      Now, you’ve mentioned en banc a couple of times. So, the state has sought en banc review?

 

Robert Dunn:  Yes.

 

Hon. Jennifer Perkins:  And my understanding is we are taking an hour out of your final day for preparing your response. Is that what we’re doing right now?

 

Robert Dunn:  We will be filing later today. Top men are working on it. Top men and women are working on it, as we speak. So progress continues. Yes. It’ll be filed today.

 

Hon. Jennifer Perkins:  Okay. And just very briefly, what are the -- I assume there’s an amicus deadline. And are there any other procedural Ninth Circuit en banc comments you’d like to make?

 

Robert Dunn:  Yeah. So, the amicus deadline in support of the state has passed. They got one amicus brief from the County of Santa Clara––my home county––who I’ve litigated against in the past. Very good lawyers over there. But our amicus deadline for folks supporting the plaintiffs is 10 days from now -- or, I guess, I think that falls on the Saturday before Labor Day, so the Tuesday after Labor Day, whatever that -- 7^th. So I think we’re going to have a few amicus briefs supporting. Still need to nail that down, but that’s where we are right now. And I think it’s going to be interesting to see how the court handles this because I do not think that there is any real reason to go en banc. I mean, the state makes two arguments. One, this is novel, both in the scope of the right and in the standard of review. I think both of those arguments are deeply flawed. There was nothing novel in recognizing the private school parents’ right to control the education of their children and I don’t see how it’s novel to apply strict scrutiny to a fundamental right. There’s really no support for that.

 

      And the other argument they make is, “Hey, look. The case is moot. These two exceptions were wrongly decided, and unless we go en banc, we’re going to have to reach the merits of all these other pending COVID cases that we also think are moot.” And our response to that is pretty simple. One, the court does not go en banc to flyspeck mootness decisions. That is obviously a case-by-case inquiry. And the panel’s holding in this case isn’t going to bind every other panel addressing a COVID challenge, brought by different plaintiffs, under a different legal theory, challenging different orders -- those will have to be decided on a case-by-case basis, as well. And of course, Judge Collins got it right. So we just don’t think there’s really any grounds to go en banc here.

 

And if the state really, really doesn’t like the fundamental rights jurisprudence from Meyer v. Pierce, which it appears that they do not, they should go to the Supreme Court on that. I mean, as we’ve seen this year, the Court is not averse to revisiting its substantive due process jurisprudence. There is -- the hottest case of the entire term is, basically, was Roe rightly decided and Casey rightly decided? And that’s Dobbs. So if they want to have the Supreme Court revisit substantive due process jurisprudence as applied to private school plaintiffs, and if they want to narrow the scope of substantive due process rights, they should go to the Supreme Court. This futzing around in the Ninth Circuit trying to get them to go en banc to, basically, error-correct Judge Collins, that’s not what the en banc process is for. So we will see what they do.

 

Hon. Jennifer Perkins:  And just one point of clarification with regard to your claims on behalf of the public-school students, is that issue part of the en banc?

 

Robert Dunn:  No, it is not. No. When Judge Collins and Judge Hurwitz both give your argument the back of the hand, that is a pretty good indication of where the court stands on that issue. They represent various wings of the court. So in our view, it wasn’t going to be a good use of time and resources to try to get the en banc court to look at that. There’s no circuit split. We couldn’t point to another circuit that has said, “Yes, there is a fundamental right to basic minimum of education.” The Sixth Circuit had briefly said that a year and a half ago or so, but they vacated that opinion, so that’s gone. So, there was no circuit split, and given that the claims, in our view, though not moot, are subject to these mootness exceptions, it seems odd to go en banc when that process wouldn’t be resolved for at least a year, probably, to address claims that are, basically, only alive because of these mootness exceptions. Still, for all those reasons, it didn’t seem to us to be a good use of resources to go after that en banc, so we did not.

 

Hon. Jennifer Perkins:  Well, I think with our last -- little bit less than 20 minutes, we’ll open the floor to questions. I’ll just circle back to the first question that I mentioned. I don’t know -- you’re welcome to pull that up if you’d like to, Robert -- but from Carlos, there, sort of, is a two-part question. But the upshot of it is the interesting aspects of trying to raise a substantive due process rights-based claim when you’re in the context of this variable and uncertain situation that’s kind of constantly changing. I don’t know if you have any comments that you’d like to make about that.

 

Robert Dunn:  Yeah. And I guess, maybe, part of this, even -- response to something the amicus brief said in support of the state -- which is these facts are just all so different. They’re trying to argue that’s why it’s not subject to a mootness exception. And our view is this, if the panel opinion is allowed to stand, as we think it should, what that means going forward is future challenges are going to be subject to strict scrutiny if they involve the core Myer v. Pierce right. So for example, if the state shuts schools down again, it would be subject to strict scrutiny. That does not mean the state couldn’t satisfy that. Right? This holding does not mean that the state could never satisfy strict scrutiny. It certainly could. And as you know, that would have to happen on a quick timetable. We would put in declarations, they would put in expert declarations, and we could actually have a court decide whether or not the state has satisfied its burden of showing that the orders are narrowly tailored and compelling interest and all of that.

 

So, from our perspective -- really all this would do, if the opinion is allowed to stand, is ensure that the state can’t do this again without satisfying its burden. And it’s possible, if Delta variant or some other variant emerges that attacks kids more than adults -- everything that we’ve seen thus far, it’s the elderly, folks with comorbidities who are at serious risk -- young, healthy kids, very little risk. It’s possible that could switch. We could have some variant emerge in the future that makes it just absolutely dangerous to have children sitting next to each other in a school, and the state could put that forward. And that case would be likely decided differently than this case because of, specifically, what you mentioned—that there are facts that are emerging all of the time. But in any substantive due process claim, you take the facts as they are. So that’s what we would do going forward. I think your muted, Judge.

 

Hon. Jennifer Perkins:  I’m -- yep. I knew at some point I would do it. The second question presented -- “Did the panel reconcile their decision on private school parents’ rights with Fields v. Palmdale case saying parental rights stop at the schoolhouse door?”

 

Robert Dunn:  Yes. So the panel made very clear -- Fields – however you want to call it -- was about, essentially, controlling curriculum in public schools––sexual content in public schools that the parents were upset about. And there are many other cases like that, and almost all of them go against the parents. So the parents have tried to, essentially, invoke Meyer v. Pierce and say, “Hey, look, we have this right to control the education of our children,” and have tried to use that to stop public schools from teaching certain curriculum. And the courts have really not been receptive to that theory because once the state is actually providing the education, Meyer v. Pierce, really don’t apply in that situation. And so that’s where the majority came out on that and we haven’t taken issue with that.

 

The state relies on Fields and similar cases in its petition for en banc, but in our view, there’s a very clear distinction between a parent trying to, essentially, force the state to teach certain curriculum or not teach certain curriculum in the public school and the state interfering with what is happening in the private school. Those are very distinct and we’ve tried to make that clear in our papers.

 

Hon. Jennifer Perkins:  Next question here -- “On the amicus brief, could you comment on the literature review of the latest school reopening framework that could be of use to your efforts?” Our questioner is a statistician who has some experience working on quantifying the scarring effects of school closure and mentions, perhaps, learning how to coordinate on that effort of the -- quantifying that data. I haven’t given his name but full disclosure, our questioner works for The World Bank and is not speaking for the the World Bank. So, I’m very familiar with those kind of disclosures, so I will put that out there for him.

 

Robert Dunn:  I’m trying to figure out exactly – well, I haven’t looked at literature on the latest school reopening framework. I mean, I think if a similar challenge happens this school year, there would be a much greater -- a wealth of data on the damage that distance learning does to kids. And we had some, I think, expert declarations in our previous papers about, essentially, costs of future income that had been destroyed by the school closures. So, kids who get, essentially, educationally delayed, there is a cost to their future earnings and there have been folks who have calculated some of that out. I think that may be what you’re referring to, at least in part. And I assume that there’s much better data on that now just because we have a whole another year. And I think that would be relevant. I mean, that certainly goes to the injury component and the cost of what the school closures impose.

 

Just, sort of, coming from the perspective of someone who has litigated many of these cases, not just for schools but also religious liberty and other types of COVID regulations, one of the things that we have seen is the state really has just -- in my view, really failed to take account of the costs of what it is doing. It is myopically focused on what it perceives to be the benefit so, in this case, slowing transmission among kids who aren’t really at risk. Sure, there could be -- there undoubtedly is some benefit in terms of reduced COVID spread, but at what cost? We got teens committing suicide at much higher rates, meanwhile, no kids died of COVID in California for the first, like, 6 months. I think they -- the state was able to point to one person under the age of 18, by August, who had died. So, the state has really been unwilling to look at the costs of what it is doing -- business closures, sort of, I think, again, another example of that. But this is one of those areas where there are enormous long-term costs to what the state has done and, in our view, just marginal to, essentially, vanishing benefits from school closures.

 

Hon. Jennifer Perkins:  I have to say, I’m in a neighboring state here in Arizona and we took, generally speaking, a fairly significantly different approach. And part of that’s the nature of Arizona being a very, I will say, school-choice friendly state with an abundance of charter schools and private schools. And although the governor did close public and charter schools -- I think it was at the end of March in 2020 -- and there was a delay of the start of public instruction in August of 2020, broadly speaking, many, many schools in this state have been open throughout or for the bulk of the time. So I think you’re right, there’s going to be, fortunately or unfortunately, a wealth of data in comparison, perhaps in a state like this, to compare those districts that never came back versus those that were back the whole time and the impact on the students in that is yet to be fully seen.

 

      We don’t have any more questions, and I know you do have a brief to get back to. So, I guess I’ll say here, thank you so much for taking time, particularly today. I think it’s an important case and I’m happy to have you here to walk us through it.

 

Robert Dunn:  Pleasure, Judge. Thank you.

 

Nicholas Marr:  Well, thanks, all, very much. On behalf of The Federalist Society, I want to thank our experts for the benefit of your valuable time and expertise today, especially Robert working on the brief right now. We appreciate you taking the time to preview this case for our audience. Of course, thank you to our audience for calling in, for your good questions, and everything like that. We appreciate your attendance and support.

 

      As always, be keeping an eye on your email and our website for announcements about upcoming events, Zoom events like this one, and even some upcoming in-person events that we’re hosting here in Washington, D.C. And with that, thank you very much for joining us today. Until next time, we are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.