A recent decision by a federal appeals court in favor of private schools should go a long way toward protecting homeschool freedom as well.

In the case of Brach v Newsom, the US Ninth Circuit Court of Appeals (yes, the one with the “outsized liberal reputation”) has ruled in favor of five California parents who objected to having their children’s schools shut down during the COVID-19 pandemic.

In-person classes were suspended at both public and private schools by Governor Gavin Newsom. Parents representing students in both types of schools joined in the lawsuit against the state. The public school parents lost; the private school parents won.

As Judge Daniel Collins wrote, “California’s forced closure of their private schools implicated a right that has long been considered fundamental under the applicable caselaw—the right of parents to control their children’s education and to choose their children’s educational forum.”

Protection for the Future

Why is this important for homeschoolers? Because homeschooling is akin to private schools, and in some states such as California, homeschooling is conducted through the private school exemption. 

This case could make a big difference in the near future. With the increase in COVID-19 cases, it’s entirely possible that Newsom, and other governors, could shut down in-person instruction again, starting in the fall.

Let’s be clear, this is not the final ruling in this case. But the Ninth Circuit sent the case back to the trial judge to implement the appeals court’s decision. The state could ask for the appellate decision to be reviewed en banc, meaning a larger number of judges would rule on the case from the Ninth Circuit.

If the decision stands, it will stand for the proposition that not only is there a fundamental right of parents to choose private school for their children, but also that there is a further limitation of the state’s authority to regulate private schools. 

How School is Done Matters

In this case, the court found the state did not have the right to shut down in-person instruction, even in the face of COVID-19. This is important because California officials argued that the only real fundamental right that parents have regarding the education of their children is the right to enroll them in a private school.  

Put another way, officials were saying the fact they can’t compel kids to attend public schools doesn’t preclude their authority to exercise significant control over private schools—including how and when private school students are taught.

Not true, according to the court.

The Ninth Circuit cited Meyer v Nebraska, a case in which the US Supreme Court ruled in favor of parents who had their children enrolled in a private school that offered some instruction in German. Nebraska had a law prohibiting instruction in any language other than English, except for the purpose of teaching that language. The Supreme Court struck the law down as unconstitutional, concluding it “attempted materially to interfere . . . with the power of the parents to control the education of their own [children].” 

The Ninth Circuit judges cited from their court’s ruling in Fields v Palmdale School District PSD, summarizing the right of parents related to education choice: “the right of parents to be free from state interference with their choice of the educational forum itself [is guaranteed].”  The choice of the forum includes the reasons behind that choice—for example, if the parents want a religious education for their child, or if a child is pursuing a skill or career that requires a more flexible schedule, the state should not be able to interfere with that choice, absent proof of substantial harm to the child.

“Direct Interference”

In this particular case, the fact that the students could receive their instruction online was not controlling. The parents had a right to their preferred education choice; they chose to have their children educated in person at the private school.  The court said: “it is hard to imagine a more direct interference with the ‘choice of the educational forum itself.’”

This ability to choose is not just any right, the court said, but a “fundamental right.” When the state interferes with a fundamental right, its action must survive “strict scrutiny” in order to be upheld.

The state must show that the law or regulation is of a compelling interest (i.e., the interest is really important) and that it is narrowly tailored, sometimes referred to “as the least restrictive means.” The court found that attempting to prevent the spread of COVID-19 is a compelling interest; so the only question left was whether the law satisfied the narrow-tailoring requirement. They ruled it did not.

The parents were able to show that the broad and lengthy closure of schools in California was more severe than restrictions imposed by other states. This fact negated any suggestion that California adopted the least restrictive means of accomplishing its compelling interest. 

Severe Restrictions

The parents also demonstrated that California was imposing the same level of COVID-19 restrictions on schoolchildren as the elderly. They were able to exhibit a significant age gradient, as the virus affects the elderly much more harshly, while having little impact, statistically speaking, on children.

The court said that while the state’s compelling interest would justify a potential range of more narrowly drawn prophylactic measures within schools, it cannot justify wholesale closure. The state failed to explain why it cannot address its concerns with rules short of a total ban; therefore, the banning of in-person instruction violates the constitutional protections of parents of private school students.

The decision was 2-1. The dissenting judge took the position that the right of the parents to choose private education is not a fundamental right sufficient to invoke strict scrutiny; therefore, the legal standard to apply was the “rational basis” test.  Since the judge concluded the law was reasonable under the circumstances, he ruled against the parents.

Looking to the Constitution

This decision is a major victory for private and homeschool parents in the jurisdictions overseen by the Ninth Circuit: Arizona, Alaska, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, and could be persuasive precedent in other jurisdictions. Homeschooling is a form of private education, whether homeschooling in a private school state or not.   

It is strong precedent for defending against overreach by the states to regulate private education. Most, including California, have very little regulation for private schools.

There are influential voices now advocating for more regulation of homeschooling, alleging that parents have too much freedom to direct their child’s education. The Brach decision should help oppose further attempts to regulate homeschooling.

Legislators contemplating further regulation should be made aware of this decision in order to evaluate the constitutionality of any legislation that impacts private schools and homeschools, in the future.