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Court: California’s private school ban violated the ‘fundamental liberty’ of parents to direct their child’s education




The U.S. Court of Appeals for the Ninth Circuit ruled Friday in the case of Brach v. Newsom that California Gov. Gavin Newsom’s pandemic restrictions on in-person learning in private schools were unconstitutional.


Quick Facts



In July 2020, the Center for American Liberty filed a suit on behalf of several parents who said their children, many of whom had special needs, were being denied access to the individualized education their children so sorely needed.


In December 2020, a district court sided with the state, arguing that “no fundamental right to basic education exists.”


The Ninth Circuit, which has become more conservative and originalist thanks to the addition of several Trump nominees over the last several years, reversed the district court’s finding, ruling that the governor had, in fact, overstepped his authority.


“Today’s opinion from the Ninth Circuit is a huge victory for parents’ rights,” said Harmeet K. Dhillon, CEO for the Center for American Liberty. “The Ninth Circuit rightly ruled in parents’ favor, affirming that they — and not Gavin Newsom or faceless bureaucrats — have the right to decide how best to educate their children.”


In writing for the majority, Judge Collins stated, “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 right includes ‘the right of parents to be free from state interference with their choice of the educational forum itself.’”


Gov. Newsom himself has certainly opted to take his own children’s education into his own hands, with his four young children returning to in-person classroom instruction at their private school in October 2020, even as millions of public school students around the state were still unable to do so.


This ruling was a victory for some parents, but not all, as Dhillon noted.


“While we are thrilled for our clients whose rights are vindicated by today’s decision, we are disappointed the Ninth Circuit did not rule that all students, including those in public school, have a basic right to an education,” she said. “We will continue to advocate for the educational rights of all students.”



Governments during the pandemic had an obligation to find the right balance between enabling public safety and protecting civil rights. No one failed more at the effort than California and Gov. Newsom — not because they weren’t capable of walking that line but because they never even tried to find it, instead leveraging the lockdowns to achieve their own political goals and attempting to increase their power over churches, private schools, small businesses, and parents, while granting exceptions to other preferred constituents, including Hollywood, Big Box stores, and the teachers’ unions.


The Supreme Court righted those actions when it came to churches, and now the Ninth Circuit has done the same with private school education, making it clear that parents — not the state — are the ultimate stewards of their children’s care and well-being.


Unfortunately, the fact remains that the court did not rule on whether or not the state in its role as public educator has the right to deprive all other children of in-person schooling when it sees fit.


With new mask mandates going into place and the threat of a new lockdown always on the horizon, let us pray that we soon see a second ruling from the courts in favor of parental rights that prevents the government from snatching away from California public school students the education they so sorely need the next time the governor determines that a crisis justifies such an immoral deprivation.