Matthew Brach v. Gavin Newsom ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW BRACH, an individual; No. 20-56291
JESSE PETRILLA, an individual;
LACEE BEAULIEU, an individual; D.C. No.
ERICA SEPHTON, an individual; 2:20-cv-06472-
KENNETH FLEMING, an individual; SVW-AFM
JOHN ZIEGLER, an individual;
ALISON WALSH, an individual;
ROGER HACKETT, an individual; OPINION
CHRISTINE RUIZ, an individual; Z.
R., a minor; ADE ONIBOKUN, an
individual; BRIAN HAWKINS, an
individual; TIFFANY MITROWKE, an
individual; MARIANNA BEMA;
ASHLEY RAMIREZ, an individual,
Plaintiffs-Appellants,
v.
GAVIN NEWSOM, in his official
capacity as the Governor of
California; ROB BONTA, in his
official capacity as the Attorney
General of California; TOMAS
ARAGON, in his official capacity as
the State Public Health Officer and
Department of Public Health
Director; TONY THURMOND, in his
official capacity as State
2 BRACH V. NEWSOM
Superintendent of Public Instruction
and Director of Education,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted En Banc January 24, 2022
Pasadena, California
Filed June 15, 2022
Before: Mary H. Murguia, Chief Judge, and M. Margaret
McKeown, Kim McLane Wardlaw, Ronald M. Gould,
Richard A. Paez, Marsha S. Berzon, Sandra S. Ikuta,
Jacqueline H. Nguyen, Paul J. Watford, Ryan D. Nelson,
and Daniel A. Bress, Circuit Judges.
Opinion by Judge McKeown;
Dissent by Judge Paez;
Dissent by Judge Berzon
BRACH V. NEWSOM 3
SUMMARY *
Civil Rights
The en banc court dismissed as moot an appeal from the
district court’s summary judgment in favor of California
Governor Newsom and state officials in an action brought
by a group of parents and a student alleging defendants
violated federal law when they ordered schools to suspend
in-person instruction in 2020 and early 2021, at a time when
California was taking its first steps of navigating the Covid-
19 pandemic.
The en banc court held that this was a classic case in
which, due to intervening events, there was no longer a live
controversy necessary for Article III jurisdiction. Nor was
there any effective relief that could be granted by the court.
The parents had not brought a claim for damages; they
sought a declaratory judgment that Governor Newsom’s
executive orders, to the extent they incorporated guidance on
school reopening, were unconstitutional. Relatedly, they
sought an injunction against the 2020-21 Reopening
Framework. But Governor Newsom has rescinded the
challenged executive orders, and the 2020-21 Reopening
Framework has been revoked. Schools now operate under
the 2021-22 Guidance, which declares that all schools may
reopen for in-person learning. And the parents conceded
that, since April 2021, there has been no “state-imposed
barrier to reopening for in-person instruction.” The actual
controversy has evaporated. Bottom line: there was no
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 BRACH V. NEWSOM
longer any state order for the court to declare
unconstitutional or to enjoin.
The en banc court rejected plaintiffs’ assertion that the
case survived under two exceptions to mootness: the
voluntary cessation exception and the capable of repetition
yet evading review exception. Neither exception saved their
case. The dramatic changes from the early days of the
pandemic, including the lifting of all restrictions on in-
person learning, fundamentally altered the character of this
dispute. The en banc court joined the numerous other circuit
courts across the country that have recently dismissed as
moot similar challenges to early pandemic restrictions.
Dissenting, Judge Paez, joined by Judges Berzon, Ikuta,
R. Nelson and Bress, stated that, mindful of the Supreme
Court’s clear directives to California on this issue and the
fact that Governor Newsom’s State of Emergency remains
operative, he would hold that this case was not moot and
affirm the district court on the merits. This case fit within
the “capable of repetition, yet evading review” exception to
mootness. The fact remained that the pandemic is not over.
Governor Newsom has not relinquished his emergency
powers, nor has the California Legislature stripped him of
those powers. So long as Governor Newsom retains the
specific power to impose similar restrictions, and the
pandemic continues, Judge Paez would find this question
“capable of repetition.”
Because Judge Paez would not find this case moot, he
briefly addressed the reasons why he would affirm the
district court’s grant of summary judgment to the State on
the parents’ substantive due process and equal protection
claims. The parents had not demonstrated that distance
learning failed to satisfy any basic educational standard.
BRACH V. NEWSOM 5
Judge Paez further stated that the parents failed to plead their
claim that the school closure orders violated their right to
send their children to private school under Meyer v.
Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of the
Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510(1925). Judge Paez would therefore dismiss this portion of
the appeal.
Dissenting, Judge Berzon joined Judge Paez’s dissent in
full. In particular, Judge Berzon agreed that the merits of the
question of whether parents of children who attend private
schools (and only those parents) have a right to access an in-
person education for their children was waived by the
plaintiffs and was not properly before this court. Because
the majority of the three-judge panel nonetheless reached the
issue and held that parents of children in private school have
a substantive due process right to have their children attend
in-person classes, including during a medical emergency,
Judge Berzon wrote separately to dispel any suggestion that
the waived issue could have possible merit were it to be
raised in a later case.
6 BRACH V. NEWSOM
COUNSEL
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; Harmeet K.
Dhillon, Mark P. Meuser, and Michael Yoder, Dhillon Law
Group Inc., San Francisco, California; for Plaintiffs-
Appellants.
Samuel P. Siegel (argued) and Joshua A. Klein, Deputy
Solicitors General; Jennifer Bunshoft and Darin L. Wessel,
Deputy Attorneys General; Gregory Brown and Jennifer G.
Perkell, Supervising Deputy Attorneys General; Cheryl L.
Feiner, Senior Assistant Attorney General; Janill L.
Richards, Principal Deputy Solicitor General; Michael J.
Mongan, Solicitor General; Rob Bonta, Attorney General;
Office of the Attorney General, San Francisco, California;
for Defendants-Appellees.
James R. Williams, County Counsel; Douglas M. Press,
Assistant County Counsel; Jason M. Bussey, Deputy County
Counsel; Office of the County Counsel, County of Santa
Clara, San Jose, California; for Amicus Curiae County of
Santa Clara.
Nicholas R. Reaves, Daniel L. Chen, and Eric C. Rassbach,
Becket Fund for Religious Liberty, Washington, D.C., for
Amicus Curiae Becket Fund for Religious Liberty.
Gordon D. Todd, Erika L. Maley, and Cody L. Reaves,
Sidley Austin LLP, Washington, D.C.; Michael H. Porrazzo,
The Porrazzo Law Firm, Rancho Santa Margarita,
California; for Amici Curiae Samuel A. Fryer Yavneh
Hebrew Academy, Montebello Christian School, Gindi
Maimonides Academy, and Saint Joseph Academy.
BRACH V. NEWSOM 7
OPINION
McKEOWN, Circuit Judge:
Much has changed since the COVID-19 pandemic
began. One thing that has stayed the same is that federal
courts may not rule on moot or hypothetical questions. Here,
a group of parents and one student ask us to pass judgment
on whether California state officials violated federal law
when they ordered schools to suspend in-person instruction
in 2020 and early 2021, at a time when California was taking
its first steps navigating the largest public health crisis since
the Great Influenza Epidemic of 1918.
Fortunately, the situation in California has changed
dramatically with the introduction of vaccines and other
measures. The State of California has rescinded its orders,
students have been back in the classroom for a year, and the
parties agree there is “currently no longer any state-imposed
barrier to reopening for in-person instruction.” The parents
urge us to decide this case anyway, suggesting that
California might, maybe one day, close its schools again. In
effect, the parents seek an insurance policy that the schools
will never ever close, even in the face of yet another
unexpected emergency or contingency. The law does not
require California to meet that virtually unattainable goal;
our jurisdiction is limited to live controversies and not
speculative contingencies. Joining the reasoning of the
many other circuits that have recently considered challenges
to early COVID-19 related restrictions, we conclude that the
mere possibility that California might again suspend in-
person instruction is too remote to save this case. We
dismiss the appeal as moot.
8 BRACH V. NEWSOM
BACKGROUND
A. Factual Background
1. The 2019–2020 School Year
In early March 2020, the World Health Organization
declared a global pandemic in response to the novel
coronavirus, SARS-CoV-2, responsible for the coronavirus
disease 2019 (“COVID-19”). Then-President Donald
Trump declared a national emergency and restricted
international travel. Governor Gavin Newsom declared a
state of emergency within California, and issued Executive
Order N-33-20, requiring Californians to “heed the current
State public health directives” including the requirement “to
stay home or at their place of residence.” Cal. Exec. Order
N-33-20 (March 19, 2020). As a result, many public-facing
institutions and businesses were closed. Schools closed their
physical buildings, but students finished out the remaining
few months of the school year with remote instruction.
2. The 2020–2021 School Year
In advance of the new school year, in summer 2020, the
California Department of Public Health announced its plans
for reopening schools. The “COVID-19 and Reopening In-
Person Learning Framework for K-12 Schools in California,
2020–2021 School Year” (“2020–21 Reopening
Framework”) was developed “to support school
communities” as they determined “when and how to
implement in-person instruction.” Under the framework,
schools were permitted to permanently reopen once the rate
of COVID-19 transmission in their local areas stabilized.
Importantly, once a school reopened under the 2020–21
Reopening Framework, it was not required to close again,
even if local COVID-19 rates later rose. The 2020–21
BRACH V. NEWSOM 9
Reopening Framework ratchetted in only one direction:
toward reopening. 1
Fourteen parents and one student (collectively “the
parents”) filed suit against Governor Newsom and other
California officials just four days after the 2020–21
Reopening Framework was announced. They alleged that
the State’s decision to delay reopening schools until local
conditions improved violated a “fundamental right to a
basic, minimum education” located in the Due Process and
Equal Protection Clauses of the Fourteenth Amendment, and
also violated various federal civil rights statutes.
By mid-December, the U.S. Food and Drug
Administration authorized the first vaccine for the
prevention of COVID-19. More vaccines were soon
authorized, and doses of the vaccines were gradually made
available to the public in late 2020 and early-to-mid 2021.
Although not initially authorized for use by children, the
vaccine is now available for those as young as five years old.
The introduction of vaccines and California’s continued
implementation of the 2020–21 Reopening Framework
allowed an ever-increasing number of schools to reopen. By
spring 2021, all of the parents’ schools had been permitted
to reopen. The parents acknowledged in an April 26, 2021,
1
The 2020–21 Reopening Framework was refined at various points
as to the benchmarks local areas were required to meet before schools
were permitted to reopen. Virtually all of these changes (save one
example) relaxed the relevant criteria, allowing schools to reopen sooner.
Like the original 2020–21 Reopening Framework, each amended version
of the framework made clear that no school would be required to close
again after reopening.
10 BRACH V. NEWSOM
court filing that there was “currently no longer any state-
imposed barrier to reopening for in-person instruction.”
3. The 2021–2022 School Year
California reached a significant benchmark during the
2021 summer holidays, when Governor Newsom announced
that over 50% of Californians had received a full course of
COVID-19 vaccination treatments. He issued Executive
Order N-07-21, which formally rescinded the Executive
Order issued at the outset of the pandemic. See Cal. Exec.
Order N-07-21 (June 11, 2021) (rescinding Cal. Exec. Order
N-33-20). As a result, “all restrictions on businesses and
activities” derived from that earlier executive order were
rescinded, including the State Public Health Officer’s March
2020 stay-at-home order. Id.The following month, the State issued updated guidance
for the upcoming 2021–2022 school year. The “COVID-19
Public Health Guidance for K-12 Schools in California,
2021–22 School Year” (“2021–22 Guidance”) imposes no
restrictions on school reopening, recognizes that “[i]n-
person schooling is critical to the mental and physical health
and development of our students,” and is “designed to keep
California K-12 schools open for in-person instruction safely
during the COVID-19 pandemic.” 2
B. Procedural Background
The parents filed suit days after the 2020–21 Reopening
Framework was announced. Proceedings moved swiftly
Cal. Dep’t of Pub. Health, COVID-19 Public Health Guidance for
2
K-12 Schools in California, 2021–22 School Year (July 12, 2021), as
amended April 6, 2022, https://www.cdph.ca.gov/Programs/CID/DCD
C/Pages/COVID-19/K-12-Guidance-2021-22-School-Year.aspx.
BRACH V. NEWSOM 11
before the district court, which denied the parents’ motion
for emergency injunctive relief on August 13, 2020, and
granted summary judgment to the State on December 1,
2020. The parents timely appealed, and we granted their
unopposed motion to expedite briefing and argument.
After this appeal was briefed, we asked the parties to
provide supplemental briefing on whether this case was
moot. The parents responded on April 26, 2021, informing
the court that their children’s schools had been permitted to
reopen and there was “no longer any state-imposed barrier
to reopening.” They insisted, however, that the case
remained live under certain exceptions to the mootness
doctrine.
On July 12, 2021, the State issued the 2021–22
Guidance, lifting all restrictions on school reopening.
Eleven days later, a divided panel of this court held that this
case was not moot and reversed the district court in part. See
Brach v. Newsom, 6 F.4th 904, 921, 934 (9th Cir.), vacated,
18 F.4th 1031 (9th Cir. 2021). Rejecting the State’s claims
of waiver, the panel accepted the parents’ new argument on
appeal that the Fourteenth Amendment’s Due Process
Clause guaranteed a fundamental right to in-person
education. See id. at 917–32. So holding, the panel reversed
the district court’s ruling on the due process claim, remanded
the equal protection claim for further consideration, and
affirmed the district court’s grant of summary judgment on
the remaining claims. See id. at 934. We voted to rehear the
case en banc. Brach v. Newsom, 18 F.4th 1031, 1032 (9th
Cir. 2021).
ANALYSIS
The threshold and ultimately only question we resolve is
whether this case is moot. The parents filed suit in the early
12 BRACH V. NEWSOM
throes of the pandemic. At the time, California was
operating under the 2020–21 Reopening Framework, which
allowed schools to permanently reopen once local COVID-
19 transmission rates fell below a certain threshold.
Unsatisfied with the delay, the parents asked the district
court to order an immediate reopening. The district court
rejected the request, but the reopening has happened
anyway—California’s schools have been operating in
person for a year—meaning the parents have gotten
everything they asked for.
This is a classic case in which, due to intervening events,
there is no longer a live controversy necessary for Article III
jurisdiction. Nor is there any effective relief that can be
granted by the court. The parents have not brought a claim
for damages; they sought a declaratory judgment that
Governor Newsom’s executive orders, to the extent they
incorporated guidance on school reopening, were
unconstitutional. Relatedly, they sought an injunction
against the 2020–21 Reopening Framework, which they
labeled the “State Order.” But Governor Newsom has
rescinded the challenged executive orders, and the 2020–21
Reopening Framework has been revoked. Schools now
operate under the 2021–22 Guidance, which declares that all
schools may reopen for in-person learning. And the parents
concede that, since April 2021, there has been no “state-
imposed barrier to reopening for in-person instruction.” The
actual controversy has evaporated. Bottom line: there is no
longer any state order for the court to declare
unconstitutional or to enjoin. It could not be clearer that this
case is moot. See Already, LLC v. Nike, Inc., 568 U.S. 85,
91 (2013) (“No matter how vehemently the parties continue
to dispute the lawfulness of the conduct that precipitated the
lawsuit, the case is moot if the dispute ‘is no longer
embedded in any actual controversy about the plaintiffs’
BRACH V. NEWSOM 13
particular legal rights.’” (quoting Alvarez v. Smith¸ 558 U.S.
87, 93 (2009))).
The parents nonetheless urge us to advise whether
California’s actions in the early days of the pandemic
violated federal law, arguing their case survives under two
exceptions to mootness: the voluntary cessation exception
and the capable of repetition yet evading review exception.
Neither exception saves their case. The dramatic changes
from the early days of the pandemic, including the lifting of
all restrictions on in-person learning, have fundamentally
altered the character of this dispute. We join the numerous
other circuit courts across the country that have recently
dismissed as moot similar challenges to early pandemic
restrictions. 3
A. The Voluntary Cessation Exception
The Supreme Court has long held that “a defendant
cannot automatically moot a case simply by ending its
unlawful conduct once sued.” Already, 568 U.S. at 91. But
this doctrine, which “traces to the principle that a party
should not be able to evade judicial review, or to defeat a
3
See Eden, LLC v. Justice, __ F.4th __, No. 21-1079, 2022 WL
1790282 (4th Cir. June 2, 2022) (concluding challenge to early pandemic
COVID-19 restriction was moot in light of changed circumstances);
Resurrection Sch. v. Hertel, __ F.4th __, No. 20-2256, 2022 WL
1656719 (6th Cir. May 25, 2022) (en banc) (same); Lighthouse
Fellowship Church v. Northam, 20 F.4th 157, 162–66 (4th Cir. 2021)
(same); Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 8–12 (1st Cir. 2021)
(same); County of Butler v. Governor of Pa., 8 F.4th 226, 230–31
(3rd Cir. 2021) (same), cert. denied, 142 S. Ct. 772 (2022); Hawse v.
Page, 7 F.4th 685, 692–94 (8th Cir. 2021) (same); Conn. Citizens Def.
League, Inc. v. Lamont, 6 F.4th 439, 448 (2d Cir. 2021) (same). But see
Elim Romanian Pentecostal Church v. Pritzker, 22 F.4th 701, 702
(7th Cir. 2022) (per curiam).
14 BRACH V. NEWSOM
judgment, by temporarily altering questionable behavior,”
does not apply here. City News & Novelty, Inc. v. City of
Waukesha, 531 U.S. 278, 284 n.1 (2001). The State did not
abandon its policy after suit was filed in July 2020. Rather,
the 2020–21 Reopening Framework, which was adopted
before the litigation, automatically permitted schools to
reopen permanently once their local areas achieved certain
COVID-19 benchmarks. The State did not rescind its school
closure orders in response to the litigation—the orders
“expired by their own terms” after COVID-19 transmission
rates declined and stabilized. County of Butler v. Governor
of Pa., 8 F.4th 226, 230 (3d Cir. 2021) (holding voluntary
cessation exception did not apply where challenged COVID-
19 restrictions “expired by their own terms” after “more than
half of all adults in Pennsylvania were vaccinated”), cert.
denied, 142 S. Ct. 772 (2022); accord Spell v. Edwards,
962 F.3d 175, 178–79 (5th Cir. 2020) (holding voluntary
cessation exception did not apply where challenged COVID-
19 stay-at-home orders “expired by their own terms”).
Even assuming the voluntary cessation exception
facially applies, it has no force here because the State has
carried its burden of establishing that “the challenged
behavior cannot reasonably be expected to recur.” Already,
568 U.S. at 96. Although we hold the government to the
same burden as private litigants in making this
determination, see Bell v. City of Boise, 709 F.3d 890, 898–
99 & n.13 (9th Cir. 2013), we nonetheless “treat the
voluntary cessation of challenged conduct by government
officials with more solicitude . . . than similar action by
private parties,” Bd. of Trs. of Glazing Health & Welfare Tr.
v. Chambers, 941 F.3d 1195, 1198 (9th Cir. 2019) (en banc)
(omission in original) (internal quotation marks omitted).
This is no bare deference: we probe the record to determine
whether the government has met its burden, even as we grant
BRACH V. NEWSOM 15
it a presumption of good faith. See Rosebrock v. Mathis,
745 F.3d 963, 971–72 (9th Cir. 2014) (identifying several
factors for assessing claims of voluntary cessation by
government actors).
California has presented a strong case that the current
order opening schools is not a temporary move to sidestep
the litigation. Most importantly, the State has
“unequivocally renounce[d]” the use of school closure
orders in the future. Am. Diabetes Ass’n v. U.S. Dep’t of the
Army, 938 F.3d 1147, 1153 (9th Cir. 2019). The State has
consistently worked to reopen schools and Governor
Newsom has publicly “reaffirm[ed]” his “commitment to
keeping California’s schools open for safe, in-person
learning.” 4 That reaffirmance is no mere statement of
aspiration. The 2020–21 Reopening Framework was
rescinded and the 2021–22 Guidance is “designed to keep
California K-12 schools open for in-person instruction safely
during the COVID-19 pandemic.” Cal. Dep’t of Pub.
Health, COVID-19 Public Health Guidance for K-12
Schools in California, supra note 2. Consistent with this
commitment, no school has been forced to close again after
reopening.
Further strengthening California’s hand is the fact that
its decision to reopen schools is “entrenched” and not “easily
abandoned or altered in the future.” Fikre v. FBI, 904 F.3d
1033, 1037–38 (9th Cir. 2018). Soon after the pandemic
began, the California legislature passed an emergency statute
4
Press Release, Off. of Governor Newsom, Governor Gavin
Newsom, Education Leaders Reaffirm Commitment to Keeping
California’s Schools Open for Safe, In-Person Learning (Dec. 22, 2021),
https://www.gov.ca.gov/2021/12/22/education-leaders-reaffirm-commit
ment-to-keeping-californias-schools-open-for-safe-in-person-learning/
(capitalization removed).
16 BRACH V. NEWSOM
allowing California’s public school system to move online.
Cal. Educ. Code § 43500 et seq. (repealed Jan. 1, 2022).
Recognizing the extraordinary nature of the pandemic, but
looking ahead, the legislature included a sunset provision so
this law would automatically expire on June 30, 2021. Id.§ 43511(b). The legislature also included a clause causing it
to self-repeal on January 1, 2022. Id. Both of these dates
have come and gone and there have been no efforts to reenact
the emergency legislation, meaning that California’s six
million public school students will continue to be offered
instruction in-person for the foreseeable future. 5 The “repeal
of a statute relied upon to justify otherwise [allegedly]
unlawful conduct may be analyzed as an event bearing on a
prediction whether an attack on the conduct is moot.”
13C Charles Alan Wright, Arthur R. Miller, & Edward H.
Cooper, Federal Practice and Procedure: Jurisdiction
§ 3533.6 (3d ed. 2008). Indeed, the legislature has declared
its intent “that local educational agencies offer in-person
instruction to the greatest extent possible” going forward,
Cal. Educ. Code. § 43520, and has enacted financial
penalties for schools that continue to operate remotely, see
id. § 43521(c). 6
Tellingly, California maintained in-person instruction
throughout the surge of the Omicron COVID-19 variant,
5
Although the legislature has taken steps to ensure that in-person
education is the norm, it has also authorized schools to offer remote
instruction to a limited number of students who do not yet wish to return
to the classroom. See Cal. Educ. Code § 51745.
6
The dissent dismisses the legislature’s efforts to reopen schools as
a “red herring.” Dissent at 25 n.6. We disagree; the legislature’s
statutory enactments, policy statements, and structured financial
incentives all serve to entrench the State’s commitment to reopening
schools.
BRACH V. NEWSOM 17
even while the State’s case count soared well past numbers
reached early in the pandemic. See Katherine Fung, Despite
Stricter COVID Restrictions, California’s Schools
Remained Open Amid Mass Closures, Newsweek (Jan. 10,
2022), https://www.newsweek.com/despite-stricter-covid-
restrictions-californias-schools-remained-open-amid-mass-
closures-1667459. It is thus apparent that, as in other
jurisdictions, the “availability of vaccines and other
measures to combat the virus have led to a significant change
in the relevant circumstances.” Lighthouse Fellowship
Church v. Northam, 20 F.4th 157, 162–64 (4th Cir. 2021)
(holding voluntary cessation doctrine did not rescue
otherwise moot challenge to early COVID-19 pandemic
restriction); see also County of Butler, 8 F.4th at 231
(holding challenge to early COVID-19 pandemic restriction
was moot in part because “the public health landscape has so
fundamentally changed”).
The parents candidly acknowledge that circumstances
have changed since July 2020, when they filed their
complaint, but suggest that an unexpected reversal in the
public health situation could lead the Governor to once again
close schools. The dissent echoes this point, arguing this
case is not moot so long as pandemic conditions might
change and “Governor Newsom retains the specific power
to impose similar restrictions.” Dissent at 26. But this
speculative contingency and the fact “the Governor has the
power to issue executive orders cannot itself be enough to
skirt mootness, because then no suit against the government
would ever be moot.” Bos. Bit Labs, Inc. v. Baker, 11 F.4th
3, 10 (1st Cir. 2021). Reasonable expectation means
something more than “a mere physical or theoretical
possibility.” Murphy v. Hunt, 455 U.S. 478, 482 (1982). We
acknowledge that the Governor’s continuing authority to
close schools is a consideration in our analysis, see Bit Labs,
18 BRACH V. NEWSOM
11 F.4th at 12, but it is by no means dispositive. As the D.C.
Circuit has succinctly explained, “the mere power to reenact
a challenged [policy] is not a sufficient basis on which a
court can conclude that a reasonable expectation of
recurrence exists. Rather, there must be evidence indicating
that the challenged [policy] likely will be reenacted.” Larsen
v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (citation
omitted) (alterations in original). 7 It will always be true, in
contexts beyond the present case, that unexpected events
may prompt the government to adopt extraordinary
measures. Given the State’s assurances and the changed
circumstances surrounding the pandemic, we conclude these
fears are too “remote and speculative” to serve as a firm
foundation for our jurisdiction. Lee v. Schmidt-Wenzel, 766
F.2d 1387, 1390 (9th Cir. 1985).
The parents fall back on the Supreme Court’s decision in
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct.
63 (2020) (per curiam), but the religious restrictions at issue
there are hardly comparable. In Diocese of Brooklyn,
religious organizations challenged New York’s COVID-19
restrictions on in-person religious services. These
restrictions were “regularly change[d]” by the State, often
multiple times in the same week. Id. at 68 & n.3. Although
7
The dissent bravely attempts to distinguish the flotilla of recent
circuit decisions finding similar cases moot, see supra note 3 (collecting
cases), by emphasizing that here the Governor’s authority derives from
the California Emergency Services Act (“CESA”), Cal. Gov’t Code.
§ 8550 et seq., which authorizes the Governor to assume additional
powers upon declaring a state of emergency. We attach less weight to
the Governor’s continuing reliance on the CESA than our dissenting
colleagues because the CESA can be invoked at any time without prior
authorization or fact finding—even if the Governor renounced these
powers today, he could assume them again tomorrow at the stroke of a
pen.
BRACH V. NEWSOM 19
the restrictions were temporarily lifted after the case reached
the Supreme Court, the case was not moot because the
plaintiffs lived under the “constant threat” that the
restrictions would be reimposed. Id. at 68. By contrast,
California’s approach to school reopening has been steady
and consistent, allowing schools to permanently reopen once
their local areas achieved the specified benchmarks. No
school has been required to close again after reopening.
California officials have not “mov[ed] the goalpost.”
Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (per
curiam) (internal citation omitted). Rather, reopening
schools has remained front and center from the beginning, in
accord with California’s consistent policy.
In sum, the State has carried its burden of establishing
there is no reasonable expectation the challenged conduct
will recur. California has renounced any intention of closing
its schools again, the school closure orders were temporary
measures designed to expire by their own terms, and the
schools have been operating in-person for a year.
B. The Capable of Repetition Yet Evading Review
Exception
The capable of repetition yet evading review “exception
is limited to extraordinary cases where ‘(1) the duration of
the challenged action is too short to allow full litigation
before it ceases, and (2) there is a reasonable expectation that
the plaintiffs will be subjected to it again.’” Alaska Ctr. for
Env’t v. U.S. Forest Serv., 189 F.3d 851, 854–55 (9th Cir.
1999) (quoting Greenpeace Action v. Franklin, 14 F.3d
1324, 1329 (9th Cir. 1992)).
Like the parties, we assume that the first condition has
been satisfied. We nonetheless conclude that this exception
to mootness does not apply because there is no “reasonable
20 BRACH V. NEWSOM
expectation” that California will once again close the
parents’ schools. Our rationale for rejecting this exception
mirrors much of our analysis regarding the voluntary
cessation exception. See Armster v. U.S. Dist. Ct. for Cent.
Dist. of Cal., 806 F.2d 1347, 1360 n.20 (9th Cir. 1986)
(noting that the voluntary cessation and the capable of
repetition yet evading review exceptions are “analogous”).
The challenged orders have long since been rescinded, the
State is committed to keeping schools open, and the
trajectory of the pandemic has been altered by the
introduction of vaccines, including for children, medical
evidence of the effect of vaccines, and expanded treatment
options. The parents’ argument that the pandemic may
worsen and that the State may impose further restrictions is
speculative. The test is “reasonable expectation,” not
ironclad assurance.
* * *
This case is moot and no exception to mootness applies.
We dismiss the appeal and remand with instructions for the
district court to vacate its judgment and dismiss the
complaint. See Chambers, 941 F.3d at 1200.
DISMISSED AND REMANDED WITH
INSTRUCTIONS.
PAEZ, Circuit Judge, dissenting, with whom BERZON,
IKUTA, R. NELSON, and BRESS, Circuit Judges, join:
The courthouse doors ought to stay open during a crisis.
Mindful of the Supreme Court’s clear directives to
California on this issue and the fact that Governor Newsom’s
BRACH V. NEWSOM 21
State of Emergency remains operative, I would hold that this
case is not moot and affirm the district court on the merits.
I.
This case fits within the “capable of repetition, yet
evading review” exception to mootness, which applies
where “(1) the challenged action is in its duration too short
to be fully litigated prior to cessation or expiration, and
(2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.”
Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S.
449, 462 (2007) (quoting Spencer v. Kemna, 523 U.S. 1, 17
(1998)).
“Reasonable” in this context is not an exacting bar. 1 The
Supreme Court has indicated that it is somewhat less than
probable:
[W]e have found controversies capable of
repetition based on expectations that, while
reasonable, were hardly demonstrably
probable . . . Our concern in these cases . . .
was whether the controversy was capable of
repetition and not . . . whether the claimant
had demonstrated that a recurrence of the
dispute was more probable than not.
1
As the majority notes, the parties agree that the first condition is
satisfied. This accords with the Supreme Court’s holding that “a period
of two years is too short to complete judicial review of the lawfulness”
of an action. Kingdomware Techs., Inc. v. United States, 579 U.S. 162,
170 (2016) (citing S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 514–16
(1911)).
22 BRACH V. NEWSOM
Honig v. Doe, 484 U.S. 305, 318 n.6 (1988) (emphasis in
original) (internal citations omitted). It certainly does not
require “repetition of every ‘legally relevant’ characteristic.”
Wis. Right to Life, 551 U.S. at 463.
The Supreme Court has repeatedly found pandemic
restrictions capable of repetition. In Roman Catholic
Diocese of Brooklyn v. Cuomo, the Court found that a
church’s challenge to New York’s pandemic restrictions was
not moot where “[t]he Governor regularly change[d] the
classification of particular areas without prior notice” and
retained the authority to continue doing so. 141 S. Ct. 63, 68
(2020) (per curiam). Though the Supreme Court did not
identify which mootness exception applied, it cited to
Wisconsin Right to Life’s discussion of the “capable of
repetition, yet evading review” exception. Id. (citing Wis.
Right to Life, 551 U.S. at 462). The Supreme Court applied
Roman Catholic Diocese in Tandon v. Newsom, holding that
a challenge to California’s pandemic restrictions on religious
gatherings was not moot because California officials
“retain[ed] authority to reinstate” the challenged restrictions
“at any time.” 141 S. Ct. 1294, 1297 (2021) (per curiam)
(citing S. Bay United Pentecostal Church v. Newsom, 141
S. Ct. 716, 720 (2021) (Statement of Gorsuch, J.) (explaining
that case was not moot because California officials have a
record of “moving the goalposts”)).
The majority points out that other circuits have recently
found similar challenges to pandemic restrictions moot. 2 A
2
Some of these cases analyzed mootness under the voluntary
cessation exception; because the majority cites these cases and because
the following analysis focuses on the facts underlying those decisions—
and on how the facts of California’s pandemic restrictions differ—I
discuss both.
BRACH V. NEWSOM 23
closer look at those cases is instructive. The First Circuit has
noted that one of the crucial factors in determining mootness
in this scenario is whether the defendant retains the power to
issue similar orders. Thus, the First Circuit found that a
challenge to pandemic restrictions was not moot where
Maine’s governor retained the power to reimpose such
restrictions. Bayley’s Campground, Inc. v. Mills, 985 F.3d
153, 157–58 (1st Cir. 2021). But it found a similar challenge
moot when Massachusetts Governor Baker terminated a
COVID-19 state of emergency, ending his authority to issue
emergency orders. Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3,
7 (1st Cir. 2021). There, the First Circuit specifically
reasoned that the lifting of the state of emergency, among
other factors, warranted a different result: “[H]ere (unlike [in
Bayley’s]) the offending order is gone, along with the
COVID-19 state of emergency.” Id. at 11. That court also
reasoned that Roman Catholic Diocese was not on point,
because unlike in that case, “neither the challenged
restriction nor the state of emergency is in effect.” Id.
(noting that this constituted a “night-and-day difference[]”).
Other circuits have followed this logic. The Fourth
Circuit found a pandemic restrictions challenge moot after
“the state of emergency in Virginia upon which [the
restrictions] were predicated ended. . . . With the termination
of the state of emergency, the Governor’s power to issue new
executive orders involving COVID-19-related restrictions
was extinguished.” Lighthouse Fellowship Church v.
Northam, 20 F.4th 157, 159, 163–64 (4th Cir. 2021). See
also County of Butler v. Governor of Pa., 8 F.4th 226, 230
(3d Cir. 2021), cert. denied sub nom. Butler County, Pa. v.
Wolf, 142 S. Ct. 772 (2022) (holding that a challenge to
pandemic restrictions was moot where health circumstances
had changed and Pennsylvania Constitution had been
amended to restrict Pennsylvania Governor’s ability to enter
24 BRACH V. NEWSOM
similar orders); 3 Elim Romanian Pentecostal Church v.
Pritzker, 962 F.3d 341, 344–45 (7th Cir. 2020), cert. denied,
141 S. Ct. 1753 (2021) (holding that a challenge to pandemic
restrictions was not moot because the new executive order
replacing the challenged restrictions included criteria for
“replacing the current rules with older ones”). 4
True, not all circuits have considered this factor. In
Hawse v. Page, the Eight Circuit held that a change in
pandemic circumstances mooted a challenge to a county’s
pandemic restrictions, without discussing whether the
county retained the authority to reimpose restrictions.
7 F.4th 685, 692–94 (8th Cir. 2021). See also Resurrection
Sch. v. Hertel, No. 20-2256, 2022 WL 1656719, at *1 (6th
Cir. May 25, 2022) (en banc) (same); Conn. Citizens Def.
League, Inc. v. Lamont, 6 F.4th 439, 446 (2d Cir. 2021)
(same).
California’s Emergency Services Act, passed in 1970,
empowers the California governor to proclaim a state of
emergency in response to war, disease, natural disaster, or
other “condition[] of disaster.” Cal. Gov’t Code §§ 8625,
8558. Pursuant to this authority, Governor Newsom first
declared a state of emergency on March 4, 2020. Under this
state of emergency, Governor Newsom ordered California
residents to stay at home, carving out an exception for
3
Plaintiffs in County of Butler evidently argued that the state
retained the power to issue orders similar to those challenged despite the
change in the state’s constitution. 8 F.4th at 231. The Third Circuit does
not explain how this argument comports with the changes to the
Pennsylvania constitution.
4
The Seventh Circuit later dismissed this case on other grounds.
Elim Romanian Pentecostal Church v. Pritzker, 22 F.4th 701 (7th Cir.
2022).
BRACH V. NEWSOM 25
“[w]orkers supporting public and private . . . K-12 schools
. . . for the purposes of distance learning, provision of school
meals, or care and supervision of minors to support essential
workforce.” And thus, schools closed. Governor Newsom
has not terminated this state of emergency. 5
Governor Newsom operated—and continues to
operate—under this emergency order. 6 It is this exercise of
power that the parents challenge. The majority takes some
comfort from the fact that “[v]irtually all of [the Governor’s]
changes [to school reopening plans] (save one example)
relaxed the relevant criteria” for reopening. That “one
example” is instructive: under the power cited above,
Governor Newsom has both loosened and tightened
restrictions on school closures since this case was filed. As
the district court explained, the State replaced its statewide
monitoring list with a tier-based system on August 28, 2020.
Brach v. Newsom, No. 2:20-CV-06472-SVW, 2020 WL
7222103, at *1 (C.D. Cal. Dec. 1, 2020). The State placed
counties on the monitoring list—where schools could not
reopen—where case rates exceeded 100 per 100,000 people
over fourteen days or that figure exceeded 25 cases and the
test positivity rate was above 8%. The tier-based system
5
Governor Newsom most recently extended the state of emergency
on February 20, 2022. See Cal. Exec. Order N-5-22.
6
The majority observes that the California legislature has allowed
the law authorizing distance learning in California public schools to
expire. This is a red herring. That statute did not become effective until
June 29, 2020—long after Governor Newsom closed schools under his
emergency powers. Cal. Educ. Code §§ 43500 et seq. (effective June 29,
2020 to December 31, 2021). Its expiration, therefore, does not strip
Governor Newsom of that power. Rather, the majority’s discussion of
the statute highlights the fact that Governor Newsom has the power
unilaterally to close schools.
26 BRACH V. NEWSOM
placed counties in the most restrictive category—where
schools could not reopen—when case rates exceeded 7 per
100,000 people per day or the test positivity rate exceeded
8%. Thus, a county with 20 cases per 100,000 people per
week and a 9% test positivity rate would not have been on
the earlier monitoring list, but would have been in Tier 1
under the later guidance. The emergency order grants
Governor Newsom the power to act unilaterally in closing
schools—power that he has used to both loosen and tighten
restrictions since this lawsuit began.
Is this case moot? It does not fit neatly into the fact
pattern of any of the cases decided thus far by the Supreme
Court. However, I would side with the First, Third, Fourth,
and Seventh Circuits—and follow the Supreme Court’s
guidance—and find that the Governor’s continuing authority
under his pandemic emergency order is a crucial factor in
this analysis. I would hold that this case is not moot. The
fact remains that the pandemic is not over. Governor
Newsom has not relinquished his emergency powers, nor has
the California Legislature stripped him of those powers. The
majority errs in sidestepping this fact. So long as Governor
Newsom retains the specific power to impose similar
restrictions, and the pandemic continues, I would find this
question “capable of repetition.” 7
7
The majority contends that the continuation of the Governor’s
emergency order carries little weight because it “can be invoked at any
time without prior authorization or fact finding—even if the Governor
renounced these powers today, he could assume them again tomorrow at
the stroke of a pen.” I agree that the theoretical ability to declare a state
of emergency that grants an official the power to issue similar restrictions
would not necessarily rescue an otherwise moot case. But see Bd. of Trs.
of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1199 (9th
Cir. 2019) (en banc) (a challenge to repealed, amended, or expired
BRACH V. NEWSOM 27
A brief discussion of the first prong of this test—the
duration of the challenged action—underscores this point.
Both parties agree that the challenged restrictions were brief
enough to evade review. Their duration, therefore, supports
the parents’ argument. And yet the majority cites the fact that
the restrictions no longer impact the parents as proof that this
case is moot! In its brief discussion of the “capable of
repetition, yet evading review” exception, the majority
hangs its hat on the fact that “[t]he challenged orders have
long since been rescinded.” And so they have—which is
exactly why this case evades review. To suggest that this is
not capable of repetition, yet evading review because the
orders have already expired subverts the purpose of this
doctrine. 8
legislation is moot unless “there is a reasonable expectation that the
legislative body will reenact the challenged provision or one similar to
it.”). I would draw the line in this case at the continuation of this
emergency order—especially because that action differs from those of
officials in other states.
8
Amici take this flawed line of reasoning further. Santa Clara
County argues that “if the State were to again bar in-person instruction,
it would do so in response to materially different conditions . . . Thus, in
the unlikely event that the State does reimpose distance learning, those
rules would give rise to a new controversy.” First, we cannot disregard
the Supreme Court’s holding that the “capable of repetition” prong does
not require “repetition of every ‘legally relevant’ characteristic.” Wis.
Right to Life, 551 U.S. at 463. Additionally, Santa Clara County reminds
us that this issue is “capable of repetition” because Governor Newsom
retains the power to close schools. And further, forcing the parents to
bring a new lawsuit every time Governor Newsom exercises that
authority to close schools—closures that are, as demonstrated, too brief
to be fully litigated—guarantees that this issue will evade review. It is
the exact scenario that the “capable of repetition, yet evading review”
doctrine was crafted to avoid.
28 BRACH V. NEWSOM
The majority accuses the parents of seeking “an
insurance policy that the schools will never ever close, even
in the face of yet another unexpected emergency or
contingency.” This exaggerates the parents’ claim. I read
the parents as seeking judicial review of the contours of the
Governor’s authority under this unprecedented expansion of
executive power. Were that power to end, this case would
be moot. As it has not, I would hold that the parents’ claims
are not moot. 9
II.
Because I would find that this case is not moot, I would
consider the merits of the parents’ claims. I briefly sketch
the reasons I would affirm the district court.
The parents have not demonstrated that distance learning
fails to satisfy any basic educational standard. For this
reason, I would affirm the district court’s grant of summary
judgment to the State on the parents’ substantive due process
claim.
Substantive due process forbids the government from
infringing on “fundamental” liberty interests. Reno v.
Flores, 507 U.S. 292, 301–02 (1993). The Supreme Court
has, so far, declined to recognize a substantive due process
9
For essentially the same reasons that this case is capable of
repetition yet evading review, the voluntary cessation doctrine also
applies. Under that “stringent” doctrine, the state has the “heavy burden”
to show that it is “absolutely clear that [its] allegedly wrongful behavior
could not reasonably be expected to recur.” Native Village of Nuiqsut v.
Bureau of Land Mgmt., 9 F.4th 1201, 1215 (9th Cir. 2021) (quoting
Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 189 (2000)). For the reasons I have already explained, the state has
not met this burden.
BRACH V. NEWSOM 29
right to a basic minimum education. See San Antonio Indep.
Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (“Education,
of course, is not among the rights afforded explicit protection
under our Federal Constitution.”); Plyler v. Doe, 457 U.S.
202, 221 (1982) (“Public education is not a ‘right’ granted to
individuals by the Constitution.”) (citing Rodriguez,
411 U.S. at 35); Papasan v. Allain, 478 U.S. 265, 285 (1986)
(“As Rodriguez and Plyler indicate, this Court has not yet
definitively settled the questions whether a minimally
adequate education is a fundamental right. . .”)).
I would leave for another day the question of whether
there exists any constitutional right to a basic minimum
education and follow the district court’s alternate reasoning
that the parents presented neither a “standard for evaluating
what should count as a minimally adequate education” nor
sufficient record evidence to show that their children are not
being educated. 10 Absent a workable standard or a much
more substantial record, I would affirm the district court’s
grant of summary judgment to the State on this claim. 11
10
The parents argue that their students experienced technology
hurdles, inferior Zoom lessons, and difficulty returning assignments on
time, and were denied standardized testing to measure their progress,
grades to improve their GPAs, and extracurricular activities to bolster
their college applications. Caselaw does not establish that these are
constitutionally-required educational components, nor are the parents’
declarations sufficiently detailed to establish that the students, as a
whole, could not access any minimally adequate education whatsoever.
11
I do not discount the very real hardship students with disabilities
faced when attempting distance learning. Plaintiff Christine Ruiz’s
autistic sons were partially or fully unable to participate in their Zoom
classroom meetings and did not receive support services that they
require. Plaintiff Ashley Ramirez’s autistic son “cannot tolerate distance
learning” and “basically shut down.” And Plaintiff Brian Hawkins’s son
30 BRACH V. NEWSOM
III.
I would affirm the district court’s grant of summary
judgment to the State on the parents’ equal protection claim.
As explained above, I would not reach the question of
whether there exists a fundamental constitutional right to a
basic minimum education, because in any event, the parents
here have not shown that their children are being deprived of
a minimally adequate education. Thus, no fundamental right
was implicated. When an equal protection claim does not
implicate a “fundamental” right or discriminate against a
suspect class, 12 “it will ordinarily survive an equal protection
attack so long as the challenged classification is rationally
related to a legitimate governmental purpose.” Kadrmas v.
Dickinson Pub. Schs., 487 U.S. 450, 457–58 (1988). The
Supreme Court has held that “[s]temming the spread of
COVID-19 is unquestionably a compelling interest.”
Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 67.
Because the school-closure order was rationally related to
this purpose when enacted, I would hold that it survives the
parents’ equal protection attack.
with ADHD was not provided with the support services he requires. But
the parents abandoned their statutory claims on behalf of disabled
students on appeal, choosing instead to devote space to the claims of
private school students.
12
Classifications based on the prevalence of COVID, or on the type
of educational provider (e.g., public schools vs. summer camps), do not
implicate suspect classes. Cf. Rodriguez, 411 U.S. at 28 (noting that a
class lacks the “traditional indicia” of being a suspect class if “the class
is not saddled with such disabilities, or subjected to such a history of
purposeful unequal treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection from the
majoritarian political process”).
BRACH V. NEWSOM 31
IV.
The parents’ opening brief before us asserts that the
school closure orders violate the parents’ right to send their
children to private school under Meyer v. Nebraska,
262 U.S. 390 (1923) and Pierce v. Society of the Sisters of
the Holy Names of Jesus & Mary, 268 U.S. 510 (1925). The
State asserts that this argument is waived. In response, the
parents contend that their district court briefing preserves a
Meyer-Pierce argument, and that, in any case, we may
exercise our discretion to consider this argument on appeal.
Not so. The parents did not merely fail to raise this
argument; they failed to plead this claim. Their complaint
only asserts that the State has violated students’
“fundamental right to receive a basic minimum education.”
While we may consider arguments not raised before the
district court, see AMA Multimedia, LLC v. Wanat, 970 F.3d
1201, 1213 (9th Cir. 2020), the parents offer no authority—
and I could not find any—to support the idea that we have
discretion to consider claims not pled in the complaint.
Examining the Meyer-Pierce right shows that the parents
did not allege a Meyer-Pierce claim. Meyer struck down a
state law barring the teaching of any language other than
English to children younger than the ninth grade. 262 U.S.
at 397, 400–01. The Supreme Court held that that the
Fourteenth Amendment protected as a liberty interest the
teacher’s “right thus to teach and the right of parents to
engage him so to instruct their children.” Id. Pierce struck
down Oregon’s compulsory public education law. 268 U.S.
at 534–35. The Supreme Court determined that under
Meyer, the law “unreasonably interfere[d] with the liberty of
parents and guardians to direct the upbringing and education
of children under their control” because the liberty interest
protected by the Fourteenth Amendment “excludes any
32 BRACH V. NEWSOM
general power of the state to standardize its children by
forcing them to accept instruction from public teachers
only.” Id.As the above holdings demonstrate, the Meyer-Pierce
right is a right asserted by parents. See also, e.g., Wisconsin
v. Yoder, 406 U.S. 205, 233 (1972) (describing Pierce as “a
charter of the rights of parents”); cf. Prince v. Massachusetts,
321 U.S. 158, 166 (1944) (noting in passing that “children’s
rights to receive teaching in languages other than the
nation’s common tongue were guarded [in Meyer] against
the state’s encroachment”). On the other hand, the right to a
“basic, minimum education” is a right asserted by children,
or by parents on behalf of children. Plyler, 457 U.S. at 221(“Public education is not a ‘right’ granted to individuals by
the Constitution”) (emphasis added) (citing San Antonio
Indep. Sch. Dist., 411 U.S. at 35). While the Supreme Court
has found that parents have standing to challenge the
education their children receive, it has never formulated this
as a parental right to a certain education. See Parents
Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S.
701, 719 (2007) (stating that parents who challenged
Seattle’s race-based school admissions scheme asserted
injury “on behalf of their children”).
The complaint does not allege any violation of a parental
right. And in their briefing before the district court, the
parents repeatedly disavowed any parental-rights claim. In
their supplemental briefing on standing ordered by that
court, the parents argued that they could assert claims “on
behalf of their children.” In their summary judgment
briefing, the parents summarized their argument, in its
entirety, as follows: “Because Plaintiffs have presented
overwhelming evidence showing that the orders violate their
children’s constitutional and statutory rights, the Court
BRACH V. NEWSOM 33
should decline to grant summary judgment to Defendants
. . .” In the same brief, the parents summarized their aim as
“seek[ing] to vindicate their children’s constitutional rights
to due process and equal protection,” “by contrast” to
caselaw in which a parent sought to “vindicate her own
asserted interest” in the child’s education. The parents could
not have been more clear: they did not bring this case to
vindicate parental rights. And because the Meyer-Pierce
right is a parental right, not a right asserted by a child or a
parent on behalf of a child, I would find that the parents
failed to raise a Meyer-Pierce claim and dismiss this portion
of the appeal.
Underscoring this conclusion is the fact that in the
district court the parents did not distinguish between the due
process rights of public school and private school children,
but rather treated them collectively. That is, they alleged the
violation of an alleged due process right to a basic minimum
education that applied to all students, whether in public or
private school. Tellingly, when the parents cited the Meyer-
Pierce line of cases in their district court briefing, they did
so only in passing. Indeed, at one point the parents
specifically stated that “Defendants mischaracterize
Plaintiffs as advocating for a ‘fundamental right to in-person
school.’ Plaintiffs’ actual argument is that ‘the Fourteenth
Amendment of the United States Constitution [] protects
Californians’ fundamental right to a basic minimum
education,’ and that the Order infringes that right because
distance learning has proved woefully inadequate.” Under
all these circumstances, Plaintiffs clearly did not preserve a
separate claim under Meyer and Pierce.
34 BRACH V. NEWSOM
IV.
Because I would hold that this case is not moot and
affirm the district court on the merits, I respectfully dissent.
BERZON, Circuit Judge, dissenting:
I join Judge Paez’s dissent in full. In particular, I agree
that the merits of the question whether parents of children
who attend private schools (and only those parents) have a
right to access an in-person education for their children was
waived by the Plaintiffs and is not properly before this Court.
Paez Dissent at 31–33.
The majority of the three-judge panel nonetheless
reached the issue and, relying principally on Meyer v.
Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of
Sisters, 268 U.S. 510 (1925), held that parents of children in
private school have a substantive due process right to have
their children attend in-person classes, including during a
medical emergency. See Brach v. Newsom, 6 F.4th 904,
927–33 (9th Cir. 2021), vacated, 18 F.4th 1031 (9th Cir.
2021). I write separately to dispel any suggestion that the
waived issue could have possible merit were it to be raised
in a later case.
Meyer struck down a Nebraska statute forbidding the
teaching of any language other than English before ninth
grade as violating the right of a German language instructor
“to teach and the right of parents to engage him so to instruct
their children.” 262 U.S. at 396–97, 400, 403. By
completely prohibiting a substantive topic of instruction—
foreign languages—the statute “interfere[d] with the calling
of modern language teachers, with the opportunities of
BRACH V. NEWSOM 35
pupils to acquire knowledge, and with the power of parents
to control the education of their own.” Id. at 401. Two years
later, Pierce struck down an Oregon law requiring parents to
send their children to public schools. 268 U.S. at 529–31.
The Court held that the statute “unreasonably interfere[d]
with the liberty of parents and guardians to direct the
upbringing and education of children under their control,”
reasoning that the law’s “inevitable practical result . . .
would be destruction of appellees’ primary schools, and
perhaps all other private primary schools” in the state and
that the state did not have the power “to standardize its
children by forcing them to accept instruction from public
teachers only.” Id. at 534–35.
The holdings of Meyer and Pierce were limited to
protecting two rights: the right of parents to choose private
rather than public school and the right of those private
schools to teach subject matter above and beyond whatever
basic curriculum the state may prescribe. To that degree,
parents have the right “to control the education of their
own,” Meyer, 262 U.S. at 401, and “to direct the upbringing
and education” of their children, Pierce, 268 U.S. at 534–35.
But the two cases’ limited holdings had nothing to do with
the state’s power otherwise to regulate the conditions under
which schools provide that knowledge, let alone the state’s
power to enforce generally applicable public health laws.
To the contrary, Meyer and Pierce explicitly preserved
the state’s broad powers to adopt regulations concerning
school attendance and “the public welfare.” Pierce,
268 U.S. at 534. Meyer reserved the “power of the state to
compel attendance at some school and to make reasonable
regulations for all schools, including a requirement that they
shall give instructions in English.” 262 U.S. at 402(emphasis added). Likewise, Pierce emphasized that states
36 BRACH V. NEWSOM
retained the power “reasonably to regulate all schools,”
including “to inspect, supervise and examine them” and “to
require that all children of proper age attend some school.”
268 U.S. at 534 (emphasis added).
Since Meyer and Pierce, the Supreme Court has
repeatedly confirmed this limited understanding of the
Meyer-Pierce right. Wisconsin v. Yoder, 406 U.S. 205(1972), reaffirmed “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. Likewise, Norwood v. Harrison,
413 U.S. 455 (1973), stressed “the limited scope of Pierce,”
which “held simply that while a State may posit
[educational] standards, it may not pre-empt the educational
process by requiring children to attend public schools,” id.
at 461 (quoting Yoder, 406 U.S. at 239 (White, J.,
concurring)). And Runyon v. McCrary, 427 U.S. 160(1976), emphasized that “Meyer and its progeny” protected
only the private “schools’ right to operate,” “the right of
parents to send their children to a particular private school
rather than a public school,” and the right to direct (at least
to some degree) “the subject matter which is taught at any
private school,” id. at 177. Echoing Meyer and Pierce,
Runyon observed that 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.” Id. at 178.
California’s suspension of in-person education during
the COVID-19 pandemic falls well outside this “limited
scope” of the Meyer-Pierce right. Id. at 177. Consistent
BRACH V. NEWSOM 37
with Pierce, California’s public health measures permitted
private schools to continue “to exist and to operate,”
Norwood, 413 U.S. at 462, and in no way caused the
“destruction” of private education, Pierce, 268 U.S. at 534.
Nor did California’s actions affect what private schools may
teach; those schools have remained “free to inculcate
whatever values and standards they deem desirable.”
Runyon, 427 U.S. at 177.
That states enjoy wide latitude to safeguard public health
and welfare is underscored by the Supreme Court’s decision
in Prince v. Massachusetts, 321 U.S. 158 (1944). Prince
concerned a challenge to a Massachusetts law restricting
child labor brought by a Jehovah’s Witness who had
assigned her niece, over whom she had legal custody, to sell
religious literature on the street. Id. at 159–63. The girl’s
guardian asserted, along with a First Amendment free
exercise right, “a claim of parental right as secured by the
due process clause of the” Fourteenth Amendment. Id. at
164 (citing Meyer, 262 U.S. 390). Although Prince
recognized both “the parent’s authority to provide religious”
education, id. at 166 (citing Pierce, 268 U.S. 510), and that
“the custody, care and nurture of the child reside first in the
parents,” id., the Court explained that “the family itself is not
beyond regulation in the public interest,” id. Accordingly,
Prince observed that “the state as parens patriae may restrict
the parent’s control” “to guard the general interest in youth’s
well being” and that the parental rights recognized in Meyer
and Pierce did “not include liberty to expose the community
or the child to communicable disease or the latter to ill health
or death.” Id. at 166–67. And the Court endorsed the state’s
“wide range of power for limiting parental freedom and
authority in things affecting the child’s welfare.” Id. at 167;
see also Yoder, 406 U.S. at 230 (recognizing the state’s
power to regulate to prevent “harm to the physical or mental
38 BRACH V. NEWSOM
health of the child or to the public safety, peace, order, or
welfare”). California’s school closures during a once-in-a-
century pandemic fall well within that “wide range of
power” to protect public health.
Additionally, that technology has only recently enabled
distance learning does not prove that there is a
constitutionally protected right to in-person instruction, as
the panel opinion posited. Brach, 6 F.4th at 929. In this
regard, the panel opinion’s reliance on “historical practice
and tradition,” id., makes little sense in light of its
simultaneous rejection of any parental right to in-person
education for public school students. To be sure, our cases
recognize that, once parents have chosen public school,
“they do not have a fundamental right generally to direct how
a public school teaches their child.” Fields v. Palmdale Sch.
Dist., 427 F.3d 1197, 1206 (9th Cir. 2005) (quoting Blau v.
Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395 (6th Cir.
2005)). But the panel opinion did not contend (nor could it)
that the historical fact of in-person instruction applied only
to private schools. It would therefore be strange to conclude,
as the panel opinion did, that students attending public
schools have no fundamental right to education at all, Brach,
6 F.4th at 922–24, yet historical practice dictates that
students attending private schools have a fundamental,
substantive-due-process based right to in-person education,
in particular.
In short, even if Plaintiffs had brought a Meyer-Pierce
claim in this case, which Judge Paez’s dissent explains they
did not do, Paez Dissent at 31–33, I would conclude that
California’s school closures challenged here did not violate
the important but limited fundamental rights protected by
those cases.