Federal Appeals Court Slaps Down Gov. Newsom’s Lockdown Orders

July, 23, 2021

The 9th Circuit Court of Appeals just ruled against Gavin Newsom’s lockdown orders regarding schools, holding that the state deprived private school parents of their rights to control their children’s education when it ordered all schools shut.

The appeals court concluded that California’s prohibition on in-person instruction deprived the parents of a core right that is constitutionally protected under existing case law.

The case was brought after Governor Newsom announced last summer that in more than 30 counties across California, school facilities would remain closed to start the fall semester—leaving roughly 80% of the state’s student population without access to a basic education. The Center for American Liberty filed suit on behalf of several parents. 

Instead of simply deferring to the judgment of the government as many courts have done in the COVID context, the 9th Circuit held state officials to a higher constitutional standard known as “strict scrutiny.”

The court said California’s prohibition on in-person instruction could not pass the higher constitutional test because the law was too broad and overreaching:

“And Plaintiffs presented evidence that California had failed to narrowly tailor its response inasmuch as it stubbornly adhered to an overbroad school-closure order even as evidence mounted that Covid’s effects exhibit a significant age gradient, falling much more harshly on the elderly and having little impact, statistically speaking, on children. As the district court noted, Plaintiffs presented “a veritable library of declarations from physicians, academics, and public health commentators” who underscored this key deficiency in California’s stated “basis for in-person learning restrictions.”

The court also noted that

”California’s only response to that evidence was to fall back on two relatively brief expert declarations from a CDPH official (and doctor) who did not deny the indisputable age differential in Covid impacts, but who nonetheless defended the broad school-closure ban on the grounds that, given the mechanics of
Covid transmission, “[i]t is possible that in the school setting, as in other settings, asymptomatic transmission may occur.”

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