Religious learning institutions challenge closure orders

Parents, teachers and students of religion-based schools challenged California's distance learning mandate, arguing the order impedes the free exercise of religion and the theological development of youth.

Plaintiffs include multiple orthodox Jewish, Catholic and Christian academies that say they should have been given a chance to present arguments before the state issued an order.

"Our laws are clear that government shall make no law abridging the free exercise of religion. Laws that treat religious institutions, including schools, unequally must be narrowly tailored to minimize the burden they place on a fundamental right," according to a lawsuit filed in the Central District of California on Aug. 17. "Parents have the right to direct the education of their children in the religious setting of their choice. Government cannot dictate, without the most compelling of justifications, where and how religious instruction may occur." Samuel A. Fryer Yavneh Academy et al v. Gavin Newsom, Tony Thurmond, et al. 2:29-CV-7408 (C.D. Cal., filed Aug. 17, 2020)

The lawsuit mirrors several complaints filed by churches over orders to close or only hold services outdoors. Those lawsuits have seen mixed success but one involving the massive Grace Community Church in the San Fernando Valley has seen some success, with judges reluctant to force houses of worship to cease operations. The churches have argued there is a double-standard in the state's rules, with many businesses being allowed to conduct business as usual.

The religious schools' lawsuit points out that daycare centers and other childcare facilities are open, and yet the parochial school across the street cannot resume in-person learning.

The lawsuit seeks statewide injunctive relief and alleges claims of due process right to education, free exercise clause and procedural due process.

Last month, Gov. Gavin Newsom ordered both public and private schools to remain closed for the fall semester. Some counties were placed on a monitoring list; to be taken off the list, certain criteria must be met.

While public health officials should weigh risks of reopening, the government must consider and protect fundamental civil liberties, the lawsuit states. Each school says it has its own carefully evaluated, physical-distancing plan to safely carry out in-person instruction.

The plaintiffs are represented by Michael H. Porrazzo, who teamed up with Gordon D. Todd, Alexis Miller Buese and several other attorneys from Sidley Austin LLP.

"When the state prohibits religious schools from conducting in-person education, it is preventing faith communities from observing religious ritual, conducting religious worship and inculcating religious values," the complaint states.

For example, Jewish schools facilitate a communal study of the Torah as a form or worship, none of which can be replicated via video; the same issue faces Christian and Catholic schools that offer sacraments, Communion, chapel, Mass or communal religious instruction that is existential to the school's educational mission, the plaintiffs say.

Shuttering of religious-based schools is subject to strict scrutiny, requiring the state to prove that religious education when conducted in compliance with public health regulations poses a unique health risk not present in any other permitted activities, according the lawsuit.

Teachers argue they can't carry out their calling of teaching religious practices and customs, as every school lesson incorporates specific teaching and engagement with students. Online learning also monetarily damages plaintiffs: most parents pulled their children out of school if they cannot get the services they expect.

Eric Rassbach of Becket Law, a non-sectarian organization focused on religious liberties for all faiths, said the Yavneh Academy case is different from other suits filed against school closures, in that these are specific religions looking to vindicate their rights under the First Amendment and free exercise claims.

"This case is more targeted and narrow; there aren't that many school-related cases nationwide," Rassbach said. He pointed out that the majority of religious challenges had to do with the banning of in-person worship services which should be treated similarly.

"This is really about religious traditions and the needs to be able to educate faith to the youth," Rassbach said.

For example, the Orthodox Judaism requires parents to teach the faith to their children via the Torah, which is typically done through schooling, Rassbach said. Prohibiting the communal custom can be seen as a direct violation of religious exercise, he said.

The dispute poses significant challenges for California, a state that often serves as a bellwether for all types of litigation, especially matters concerning religious schooling, Rassbach said.

Religious schools could become obsolete if the order continues for years, according to Rassbach, who likened them to small business that shut down for good as they don't have a financial guarantor and aren't subsidized by tax dollars.

The problem arises when the government says they'll reopen some activities but not churches or other businesses, according to Rassbach, which is what Chief Justice John Roberts focused on in the South Bay Pentecostal Church v. Newsom case. In that case, handed down May 29, the justices refused to overturn Gov. Gavin Newsom's order limiting the size of church gatherings.

"The question is, are these things comparable?"

Professor Eugene Volokh of UCLA Law School said that although the government has broad authority to restrict constitutionally-protected activities amid an emergency which includes worship services, demonstrations and private education, courts have in the past "accepted the argument that the government often tends to treat religiously-motivated behavior and practices worse than other types of closely comparable behavior."

Volokh pointed out the government isn't shutting down all activities involving youth. Childcare operations are ongoing, and if these organizations decide there will be an educational component to their services, that should be considered prohibited.

"That's a potentially viable argument. If in person schooling is no more dangerous and more constitutionally protected, why are we treating it worse?" he asked. Some churches argued in-person worship is forbidden while protests were allowed, Volokh pointed out.