This may seem odd….

Do the parents who choose to put their children in a private school have greater constitutional protection than the parents who enroll their kids in the local public school?  They do, according to the 9th Circuit. 

This came up in a COVID case in which parents challenged the state order to cease providing in-person instruction.  The plaintiffs included parents of public school kids, and parents of private school kids. The court held that the public school parents had no case, but the private school parents could proceed with their lawsuit.

Sound strange?  Here’s the explanation.  The distinction is based on Supreme Court precedent.  SCOTUS has held that there is no federal constitutional right to public education. Therefore, the state’s decision as to how to provide educational services will be upheld as long as there is a rational basis for it.  Here, health concerns provided that rational basis. 

However, SCOTUS has also held that parents have a fundamental constitutional right to direct the upbringing of their children, and this includes the right to place them in a private school.  Any state restriction on this right must be narrowly tailored to satisfy a compelling governmental interest.  The court held that the restrictions on in-person schooling in private schools were overly broad, and therefore, did not satisfy the constitutional standard.

Of course this is just one of what appear to be hundreds of lawsuits about how schools handle COVID.  But it’s the only one I’ve come across that addresses the issue from a constitutional perspective, and draws this distinction.  Just thought you might find it interesting. 

It’s Brach v. Newsom, decided by the 9th Circuit on July 23, 2021.  It’s in Special Ed Connection at 79 IDELR 61. 


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Tomorrow: a follow up to Mahanoy….