The state is challenging a Ninth Circuit Court of Appeal panel’s decision that private schools cannot be closed during a pandemic, alleging that the ruling conflicts with a higher court precedent.
As previously reported, the 9th Circuit Court of Appeal decided against the state in Matthew Brach et al v. Gov. Gavin Newsom et al, ruling that it violated a parents’ right to choose by closing private schools during the pandemic.
“This case will go all the way up to the Supreme Court and Newsom will lose,” said real estate developer Doug Ose, who is among the recall candidates who is gunning to unseat Gov. Newsom on Sept. 14 during a special election.
A three-judge panel issued the 84-page opinion on July 23. The panel consisted of Circuit Judges Eugene E. Siler, Andrew D. Hurwitz, and Daniel P. Collins.
“Governor Newsom is so far in over his head that he doesn’t know whether he's winning or losing,” said Ose, a former congressman for the 7th Congressional District. “We are in dangerous territory with someone like this who really has a difficult time evaluating facts and recognizing when they're wrong and then changing direction. We are in a very, very difficult place with respect to the leadership of our state today.”
On Aug. 5, the state filed a petition for rehearing and the court ordered the parties to respond by Aug. 26. An en banc hearing involves the entire Ninth Circuit court rather than just a panel of three.
“The panel held that the Due Process Clause confers a novel, substantive due process right to in-person private school instruction,” wrote attorney Samuel P. Siegel on behalf of the state. “That expansive holding threatens to subject any number of generally applicable laws, from disability access to building safety, to strict scrutiny. Its conclusion conflicts with Supreme Court and Ninth Circuit precedent—as well as precedents from other circuits—recognizing a much more limited Meyer-Pierce due process right.”
Under Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), it has been affirmed that due process includes a parent's right to select an educational forum for their child without intervention from the state, according to media reports.
“Gov. Newsom and his minions believe that they are better qualified to tell you and me what to do when we are qualified to make the decision ourselves,” Ose told the Southern California Record. “That is the heart of this hubris, which they continue to exhibit not only on this issue but on homelessness, forest fires, their unwillingness to build water storage and a hundred other things.”
Last month, the state of California doled out a $1.35 million settlement to Liberty Counsel after losing in court against Harvest Rock Church and Harvest International Ministry over a ban on church services during the pandemic.