Court provides some clarity on schooling

Even though California schools are re-opening, we’re pleased that the 9th Circuit Court of Appeal recently weighed in on some of the state’s COVID-19 closure edicts. It’s not inconceivable that California could face pressure for stay-at-home rules in the future, so it’s best that the federal courts put a few brakes on the governor’s runaway executive power.

Representing a variety of school-aged parents, a national conservative group called the Center for American Liberty challenged the constitutionality of Gov. Gavin Newsom’s executive order last July, which banned in-person learning at public and private schools in counties on the state’s COVID-19 watch list. The plaintiffs made an unusually broad case.

They argued that the shutdown rules violated the Constitution’s guarantee of “the right to equal protection, free from arbitrary treatment by the state,” as well as the right “to be free from federally-funded state action resulting in a disparate impact on racial minorities” and “the right to equal and meaningful access to education.”

The appeals court wisely brushed aside the plaintiffs’ more far-reaching constitutional arguments by, for instance, refusing to “recognize a federal constitutional right to have the state affirmatively provide an education.” Nevertheless, the judges handed the plaintiffs â€" and many students and their parents â€" a significant victory.

Rather than get mired in a thicket of claimed rights, the court made a relevant distinction. The state may ban in-person teaching at public schools, it found, but concluded that the “forced closure of their private schools implicates a right that has long been considered fundamental under the applicable case law â€" the right of parents to control their children’s education.”

The Constitution did not provide “positive” rights, such as the right to receive a taxpayer-funded education. But it did distinguish between public and private spheres. Fundamentally, the government may set the attendance terms for the schools that it operates, but has little authority regarding private schools. Both sides in the case experienced some disappointment, but the verdict offers some needed constitutional guidance if California ever faces a shutdown situation again.

This post first appeared on ocregister.com

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