Panel asks if in-person schools are a right

A 9th U.S. Circuit Court of Appeals panel considered Tuesday the constitutionality of the state's public health policies during the COVID-19 virus that have kept many California schools closed.

Parents filed a lawsuit arguing the restrictions, requiring school closures when counties have faced a spike in deaths and hospitalizations during the pandemic, violate their children's right to a minimum education under the 14th Amendment.

9th Circuit Judge Andrew D. Hurwitz, an appointee of President Barack Obama, questioned Eimer Stahl LLP attorney Robert E. Dunn on why this panel should find there was a fundamental right to education when the U.S. Supreme Court has declined to do so.

Dunn compared the case to the high court's 2015 decision ruling same sex couples had a fundamental right to marry. Obergefell v. Hodges, 576 U.S. 644 (2015).

"The state has declined to confer a benefit," Dunn told the panel. "It can't deny that benefit to anyone." Brach et al. v. Newsom et al., 20-56291 (9th Cir., filed Dec. 7, 2020).

Hurwitz was skeptical of the analogy and questioned whether there was any fundamental right to public education at all.

He cited another Supreme Court case, San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), which rejected a challenge to Texas' public education finance system on 14th Amendment grounds.

"The Rodriguez court said there wasn't a fundamental right to education," Hurwitz said. "What you're really saying is you have a right to in-person education -- even if it's the worst education in the world."

Dunn was asking the panel to overturn a summary judgment ruling in favor of the state by U.S. District Judge Stephen V. Wilson of the Central District of California.

9th Circuit Judge Daniel P. Collins, an appointee of President Donald Trump, tossed tougher questions at Deputy Attorney General Jennifer A. Bunshoft, who represented Gov. Gavin Newsom and Attorney General Xavier Becerra.

"Some of the plaintiffs attend private schools," Collins said. "They are asking the state to stop interfering with their right to attend private school."

Bunshoft said Newsom's restrictions are an example of "the compelling interest the state has in protecting the rights of its people" during a deadly pandemic.

She said the state's guidelines are based on tiers that depend on the severity of COVID-19 conditions.

Collins also asked if the state restrictions, which limit many schools to no attendance, would survive the November decision by the Supreme Court in cases blocking limits on indoor church services. Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct 63 (2020).

Bunshoft said that case would not apply to the COVID-19 limits on schools because it does not involve the First Amendment.

The third member of the panel, who asked a few questions, is Senior 6th U.S. Circuit Court of Appeals Judge Eugene E. Siler Jr., an appointee of President George H.W. Bush.

One case that was not discussed during the arguments was a lawsuit by Mark D. Rosenbaum -- a Los Angeles-based litigator of Public Counsel -- on behalf of Detroit schoolchildren against the state of Michigan, in which he persuaded a divided 6th Circuit panel last year that basic minimum education, including literacy, was a constitutional right.

Siler was not a member of that panel.

Michigan Gov. Gretchen Whitmer quickly settled the lawsuit, and the ruling was vacated by the full circuit in July so it is not precedent.