Ninth Circuit Court Rules Calif. Gov. Newsom’s Lockdowns of Private Schools are Unconstitutional

P. Gardner Goldsmith | August 5, 2021
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The past fifteen months saw U.S. politicians and bureaucrats engage in some of the most flagrant, abusive theft of our rights and opportunities as has been seen here in the past century – and some of the most damaged victims have been kids. From birthing wards keeping newborns away from their mothers, to schools forcing children to don face diapers for hours or participate in online classes, children have lost a lot. And a new U.S. Ninth Circuit Court of Appeals ruling finds that, in the case of California Governor Gavin Newsom’s (D) lockdowns of private schools, the government has broken the U.S. Constitution.

Writing for the American Institute for Economic Research (AIER), Adjunct Research Fellow Ethan Yang puts a great deal of this into perspective:

This ruling was an all too rare affirmation of the seemingly forgotten fact that there is no pandemic clause in the Constitution that places the egos of politicians over the rights of individual citizens.

Unfortunately, it’s not quite that deserving of celebration.

The case, “Branch v. Newsom,” was brought in 2020 by the Dhillon Law Group, which explains that it worked with the non-profit Center for American Liberty on behalf of many plaintiffs to challenge Newsom's order "barring in-classroom education in 32 counties and for 80% of California's children."

The plaintiffs asserted that, by locking down both public and private schools, Newsom relegated kids to online classes. Some of them couldn’t get online for sessions, and those who did suffered through poorer quality classes compared to in-person instruction. This, they claimed, was a breach of the Sixth Amendment promise of due process of law prior to government delivering any form of punishment.

The court majority agreed, in a 2-1 decision. 

But this is not necessarily something to celebrate, long-term, and it’s incumbent on us to understand the two reasons why.

Related: LA County Sheriff Won’t Enforce New Mask Mandates, But...

First, the court only found in favor of plaintiffs associated with private, not public, schools.

In the case of the public schools, plaintiffs argued that by shifting students away from in-person classes and into web-based classes, the state was depriving them of a “constitutionally insured right to education” and breaching the Sixth Amendment promise of due process prior to punishment.

This, Judge Daniel Collins and Judge Eugene Siler (sitting in from the Sixth Circuit) wrote, was not an affirmative call for judicial intervention, because:

Both the Supreme Court and this court have repeatedly declined to recognize a federal constitutional right to have the State affirmatively provide an education in any particular manner, and Plaintiffs have not made a sufficient showing that we can or should recognize such a right in this case.

Some, like yours truly, would note that the forced extraction of wealth from taxpayers is a form of punishment that stands as a breach of Sixth Amendment due process and of the Eighth Amendment prohibition against cruel and unusual punishment. Since earning income is not a crime committed against another person, and since taxation provides no trial, how can the state punish an innocent person by extracting their wealth?

Instead, the Ninth Circuit majority only found in favor of private school attendees and their parents:

(T)he 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.’ [This right rests on Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), though it has been repeatedly reaffirmed since then.

AIER’s Yang offers pertinent background on those 1920s cases:

The case law they reference that extends due process protections to educational discretion are Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), which together form the Meyer-Pierce right, which is the right of parents to decide their children’s education. Meyer was a case involving a teacher who violated a law mandating that only English be taught in schools by teaching German. Pierce involved a set of plaintiffs who contested Oregon’s Compulsory Education Act of 1922 which mandated attendance to public school for children of certain ages. 

The Meyer-Pierce right would go on to be affirmed in case after case. In particular, its explicit protection of in-person-schooling has been affirmed by case law as well.

But that legal shorthand can cloud what should be a clear, unadulterated, view of rights. There is no “Meyer-Pierce” right that suddenly arose from judicial precedent. There is only the eternal, reciprocal human right to be left alone, free of aggressive coercion, theft, and harm by others. The “Meyer-Pierce right” is a label attached to a preexisting human right to be left alone by the state – a right that judges repeatedly have attacked by placing wiggle room in their rulings and allowing states to interfere with free people as long as it is for a “compelling state interest” and it is “tailored narrowly.”

Related: Chief Justice Roberts Takes the Wrong Side Again As SCOTUS Strikes Down Cali's Church Restrictions

Thus, we reach the important second flaw in what otherwise is a good ruling. And it is a big one that shows us how rights constantly are under the thumb of government.

Yang explains:

(T)his extends due process protections to private schools. That means the state could potentially close private schools; however, its policies must be narrowly tailored and not overly arbitrary. The narrowly tailored standard has been invoked by a number of judges to rule in favor of some anti-lockdown cases, although they are far and few between. In particular, an LA County judge applied the same standard to an outdoor dining ban, in which he rightfully noted that the scientific evidence as well as the state’s actions do not support such a policy.

The right to engage in voluntary contract and free association is not contingent on “scientific evidence." It’s a right. Period. By placing that caveat on it, all politicians, judges, and legal “scholars” become complicit in excusing aggression against innocent, peaceful people.

Such aggression infringes on rights even if it is “narrowly tailored” to “facilitate a compelling state interest.” There is no “compelling state interest.” There is only individual interest, only individual right. Rights are not subject to what politicians and judges say is a “compelling state interest.” This is axiomatic and irrefutable.

But, even in finding that California infringed on the plaintiffs' rights, the court majority conforms to this dark 20th Century legal tradition, concluding:

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…

This does not comport with any semblance of the principle that parents have the right to contract with private schools for the education of their children, that they have a right to not be punished without due process -- as assured by the Sixth and Eighth Amendments -- or even that they have a right be assumed innocent of “infection.”

It lets the state breach these rights and the U.S. Constitution if the state can “narrowly tailor” its actions for the moment, and if it can offer a strong “scientific reason” for attacking rights.

This is not the foundation on which a free society is based. It is consequentialist. It embraces the same “ends-justify-the-means” philosophy that saw so many horrors in 19th and 20th Century totalitarian states.

Careful study of this ruling indicate to us that, even with a decision that appears laudable, the devil always is in the details.