Matthew Brach, an individual v. Gavin Newsom

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M ATTHEW BRACH, an individual;
J ESSE PETRILLA, an individual;
LACEE BEAULIEU, an individual;
ERICA SEPHTON, an individual;
KENNETH FLEMING, an individual;
J OHN ZIEGLER, an individual;
ALISON W ALSH , an individual;
ROGER H ACKETT , an individual;
CHRISTINE RUIZ , an individual; Z.R.,
a minor; ADEBUKOLA O NIBOKUM , an
individual; BRIAN H AWKINS , an
individual; TIFFANY M ITROWKE , an
individual; M ARIANNE BEMA, an
individual; ASHLEY RAMIREZ , an
individual,
Plaintiffs-Appellants,
v.
GAVIN NEWSOM , in his official
capacity as the Governor of
California; ROBERT A. BONTA, in his
official capacity as the Attorney
General of California; TOMÁS J
ARAGÓN, in his official capacity as
the State Public Health Officer of
California and Director of the
California Department of Public
Health; TONY THURMOND , in his
No. 20-56291
D.C. No.
2:20-cv-06472-
SVW-AFM
OPINION

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2 BRACH V. N EWSOM
official capacity as State
Superintendent of Public Instruction
of California and Director of
Education of California,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted March 2, 2021
Pasadena, California
Filed July 23, 2021
Before: Eugene E. Siler,* Andrew D. Hurwitz, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins;
Dissent by Judge Hurwitz
* The Honorable Eugene E. Siler, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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BRACH V. N EWSOM 3
SUMMARY**
Civil Rights
The panel affirmed in part and reversed in part the
district court’s summary judgment in an action brought by
parents and a student alleging federal constitutional
challenges to the State of California’s extended prohibition
on in-person schooling during the Covid-19 pandemic.
The panel concluded that, despite recent changes to the
State’s Covid-related regulations, this case was not moot.
The panel framed its mootness analysis by the Supreme
Court’s recent decision in Roman Catholic Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63 (2020), invoking the same
two doctrines: voluntary cessation and capable of repetition
yet evading review. The panel held that to the extent that the
State has now removed its prior per se school-closure order,
that was the result of the State’s voluntary conduct in
repeatedly changing the framework of restrictions. The
panel rejected as foreclosed by Diocese of Brooklyn, the
State’s argument that the voluntary cessation doctrine was
inapplicable because reclassifications of counties into lower
tiers was attributable to changes in underlying Covid
infection rates, rather than any changes in California
directives. The panel held that given the State’s “track
record of moving the goalposts; its retention of broad
authority to reinstate those heightened restrictions at any
time; and its failure to expressly foreswear ever using school
closures again,” the panel could not say that the State carried
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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4 BRACH V. N EWSOM
its “formidable burden” under the voluntary cessation
doctrine. The panel further held that if were to treat this case
as moot, the case would evade review despite plaintiffs’ best
efforts to expedite it, and a future case would likely suffer
the same fate. Effective relief likely could not be provided
in the event of any recurrence, which also made this a
paradigmatic case of applying the doctrine of capable of
repetition yet evading review.
As to the merits, the panel held that the district court
properly rejected the substantive due process claims of those
plaintiffs who challenged California’s decision to
temporarily provide public education in an almost
exclusively online format. The panel stated that both the
Supreme Court and this court have repeatedly declined to
recognize a federal constitutional right to have the State
affirmatively provide an education in any particular manner,
and plaintiffs had not made a sufficient showing that the
panel could or should recognize such a right in this case.
The panel reached a different conclusion, however, as to
the State’s interference in the in-person provision of private
education to the children of five of the plaintiffs in this case.
California’s forced closure of their private schools
implicated a right that has long been considered fundamental
under the applicable caselaw—the right of parents to control
their children’s education and to choose their children’s
educational forum. Because California’s ban on in-person
schooling abridged a fundamental liberty of these five
plaintiffs that was protected by the Due Process Clause, that
prohibition could be upheld only if it withstood strict
scrutiny. Given the State closure order’s lack of narrow
tailoring, the panel could not say that, as a matter of law, it
survived such scrutiny. The panel therefore reversed the

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BRACH V. N EWSOM 5
district court’s grant of summary judgment as to these five
plaintiffs and remanded for further proceedings.
As for plaintiffs’ claims under the Equal Protection
Clause of the Fourteenth Amendment, the panel concluded
that the public-school plaintiffs failed to make a sufficient
showing of a violation of the Equal Protection Clause. The
challenged distinctions that the State had drawn between
public schools and other facilities were subject only to
rational-basis scrutiny, and these distinctions readily
survived that lenient review. As to the private-school
plaintiffs, the panel vacated the district court’s judgment
rejecting their Equal Protection claims and remanded for
further consideration in light of the conclusion that the
State’s actions implicated a fundamental right of those
plaintiffs.
Dissenting, Judge Hurwitz stated that despite the
drastically changed legal landscape, the majority refused to
recognize that the case was moot. But the majority’s
mootness analysis, while incorrect, did little damage on its
own. What was far more troubling was the majority’s
treatment of the private-school plaintiffs’ constitutional
claims. In finding that plaintiffs had pleaded a substantive
due process violation, the majority relied on an argument
never raised below. And in addressing that forfeited
argument, the majority cast aside governing law,
reimagining the scope of Supreme Court precedent and
applying strict scrutiny to the challenged state health
directives.

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6 BRACH V. N EWSOM
COUNSEL
Robert E. Dunn (argued), Eimer Stahl LLP, San Jose,
California; Ryan J. Walsh, John K. Adams, and Amy C.
Miller, Eimer Stahl LLP, Madison, Wisconsin; Harmett K.
Dhillon, Mark P. Meuser, and Michael Yoder, Dhillon Law
Group Inc., San Francisco, California; for Plaintiffs-
Appellants.
Jennifer A. Bunshoft (argued) and Darin L. Wessel, Deputy
Attorneys General; Gregory D. Brown and Jennifer G.
Perkell, Supervising Deputy Attorneys General; Cheryl L.
Feiner, Senior Assistant Attorney General; Rob Bonta,
Attorney General; Office of the Attorney General, San
Diego, California; for Defendants-Appellees.
OPINION
COLLINS, Circuit Judge:
Plaintiffs, 14 parents and one student, appeal from the
district court’s grant of summary judgment dismissing their
federal constitutional challenges to the State of California’s
extended prohibition on in-person schooling during the
Covid-19 (“Covid”) pandemic. We conclude that, despite
recent changes to the State’s Covid-related regulations, this
case is not moot. As to the merits, we hold that the district
court properly rejected the substantive due process claims of
those Plaintiffs who challenge California’s decision to
temporarily provide public education in an almost
exclusively online format. Both the Supreme Court and this
court have repeatedly declined to recognize a federal
constitutional right to have the State affirmatively provide
an education in any particular manner, and Plaintiffs have

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BRACH V. N EWSOM 7
not made a sufficient showing that we can or should
recognize such a right in this case.
We reach a different conclusion, however, as to the
State’s interference in the in-person provision of private
education to the children of five of the Plaintiffs in this case.
California’s forced closure of their private schools
implicates a right that has long been considered fundamental
under the applicable caselaw—the right of parents to control
their children’s education and to choose their children’s
educational forum. Because California’s ban on in-person
schooling abridges a fundamental liberty of these five
Plaintiffs that is protected by the Due Process Clause, that
prohibition can be upheld only if it withstands strict scrutiny.
Given the State closure order’s lack of narrow tailoring, we
cannot say that, as a matter of law, it survives such scrutiny.
We therefore reverse the district court’s grant of summary
judgment as to these five Plaintiffs and remand for further
proceedings.
As for Plaintiffs’ claims under the Equal Protection
Clause of the Fourteenth Amendment, we conclude that the
public-school Plaintiffs have failed to make a sufficient
showing of a violation of the Equal Protection Clause. The
challenged distinctions that the State has drawn between
public schools and other facilities are subject only to
rational-basis scrutiny, and these distinctions readily survive
that lenient review. As to the private-school Plaintiffs, we
vacate the district court’s judgment rejecting their Equal
Protection claims and remand for further consideration in
light of the conclusion that the State’s actions implicate a
fundamental right of those Plaintiffs.

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8 BRACH V. N EWSOM
I
This case involves a challenge to various orders that
California has issued concerning the operation of schools
and other facilities during the current Covid pandemic. The
Defendants are various officials of the State of California,
whom we refer to collectively as “California” or “the State.”
Among the Plaintiffs are 10 parents of current California
public-school students and one public-school student
(collectively, the “public-school Plaintiffs”).1 Also included
among the Plaintiffs are five parents (collectively, the
“private-school Plaintiffs”) who seek to send their children
to private school for in-person instruction. The various
Plaintiffs contend that, as applied to their schools,
California’s prohibition on in-person learning “effectively
1 Three of the Plaintiffs (Kenneth Fleming, Tiffany Mitrowke, and
Ashley Ramirez) alleged in the operative complaint that their children
attended public school but then failed to mention that detail in their
declarations. The State has not contested that their children attend public
schools, however, and so the point is properly taken as undisputed for
purposes of summary judgment. One parent (Lacee Beaulieu) has one
child in public school and one child in private school. Two Plaintiffs
(Marianne Bema and Brian Hawkins) do not state, either in their
declarations or in the complaint, which types of school their children
attend. Given this failure of proof, there is no basis in the record to
exclude them from the group of Plaintiffs whose claims fail on the
merits—viz., the public-school Plaintiffs. Accordingly, they are properly
classified as public-school Plaintiffs for purposes of this appeal. One
Plaintiff (Alison Walsh) previously had her children enrolled in public
school but switched them to private school in the fall of 2020. Because,
however, she did not state that she planned to switch them back to public
school if the challenged orders were lifted, and because the only relief
sought in the complaint is prospective, she is properly classified as only
a private-school Plaintiff. By contrast, because Plaintiff Jesse Petrilla
has averred that he will switch his current private-school children back
to public school upon reopening, he is appropriately deemed to be only
a public-school plaintiff.

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BRACH V. N EWSOM 9
preclud[ed] children from receiving a basic minimum
education” and violated their fundamental rights under the
Due Process Clause of the Fourteenth Amendment.
Plaintiffs also allege that California’s school-closure
mandate violated the Equal Protection Clause by “arbitrarily
treat[ing] Plaintiffs’ children (and other minors attending
public and private schools) differently from those in nearby
school districts; from those in childcare; and from those
attending summer camps, even though all such children and
their families are similarly situated.” Plaintiffs sought a
declaratory judgment, injunctive relief, and other
“appropriate and just” relief for the alleged violation of their
constitutional rights.
On appeal from the district court’s summary judgment
against them, Plaintiffs ask us to reverse and remand with
instructions to grant summary judgment in their favor. In
reviewing the factual and procedural background concerning
Plaintiffs’ claims, we begin by describing the legal
framework of the relevant restrictions that California has
placed on the operation of public and private schools, and
we then summarize the specific factual context of Plaintiffs’
claims.
A
As cases of Covid began to rise in early 2020,
government officials across the country began to issue orders
seeking to control the spread of the virus. In framing its de
jure restrictions, California adopted a comprehensive
approach. On March 19, 2020, the Governor issued
Executive Order N-33-20, which directed all California
residents “to immediately heed the current State public
health directives,” including the requirement “to stay home
or at their place of residence except as needed to maintain
continuity of operations of the federal critical infrastructure

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10 BRACH V. N EWSOM
sectors.” See Cal. Exec. Order N-33-20 (Mar. 19, 2020)
(emphasis added).2 Under this order, which remained in
effect until June 11, 2021, the default rule was that California
residents were prohibited “from leaving their homes for any
reason, except to the extent that an exception to that order
granted back the freedom to conduct particular activities or
to travel back and forth to such activities.” South Bay United
Pentecostal Church v. Newsom, 959 F.3d 938, 944 (9th Cir.
2020) (Collins, J., dissenting). Accordingly, the ability to
operate schools (or anything else) turned on what sort of
permission State officials granted back either in the form of
rules governing “critical infrastructure sectors” or some
other exception to the stay-at-home order.
Shortly thereafter, on March 22, 2020, the California
State Public Health Officer issued a list of designated
“essential” workers who were allowed to leave their homes
to support specified critical infrastructure sectors. That list
expressly included workers teaching at “public and private
. . . K–12 schools,” but only for “distance learning.”
Although many schools had already independently decided
to close by that time, the effect of these orders was to impose
a new State mandate that schools remain limited to “distance
learning.”
On May 4, 2020, the Governor issued Executive Order
N-60-20, which reiterated the obligation to “continue to
obey State public health directives,” which “have ordered all
California residents [to] stay home except for essential
needs, as defined in State public health directives.” Cal.
2 Previously, the Governor had declared a state of emergency on
March 4, 2020, and he issued an executive order on March 12 ordering
that “[a]ll residents are to heed any orders and guidance of state and local
public health officials.” Cal. Exec. Order N-25-20 (Mar. 12, 2020).

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BRACH V. N EWSOM 11
Exec. Order N-60-20 (May 4, 2020). This order addressed
the State’s issuance of a planned four-stage “Roadmap” for
reopening, which defined “Stage 1” as the then-existing
largely closed state of affairs. The order stated that, in
implementing such a phased reopening, the State Public
Health Officer could establish “criteria and procedures” to
allow local health officers “to establish and implement
public health measures less restrictive” than the State-
imposed measures. Id. The order further stated that no
aspect of the order, including the State Public Health
Officer’s “establishment or implementation of such criteria
or procedures,” would be subject to California’s
“Administrative Procedure Act [(‘APA’)], Government
Code section 11340 et seq.” Id. The order also declared that
nothing in these “criteria and procedures” governing local
health officers “shall limit the authority of the State Public
Health Officer to take any action she deems necessary to
protect public health in the face of the threat posed by
COVID-19.” Id.
In a follow-on May 7, 2020 order, the State Public Health
Officer stated that she would “progressively designate
sectors, businesses, establishments, or activities that may
reopen with certain modifications.” See Cal. State Public
Health Officer Order of May 7, 2020. This order further
provided that, “[t]o the extent that such sectors are re-
opened, Californians may leave their homes to work at,
patronize, or otherwise engage with those businesses,
establishments, or activities,” provided that, “at all times,”
they must “practice physical distancing, minimize their time
outside of the home, and wash their hands frequently.” Id.
The order reiterated that, apart from any such designated
exceptions, the March 19 stay-at-home order “otherwise
remains in full effect.” Id.

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12 BRACH V. N EWSOM
The initial Roadmap had suggested that in-person school
instruction might be designated as an activity authorized at
“Stage 2.” However, the State reversed course on its overall
reopening plan in mid-July. On July 13, 2020, the State
Public Health Officer issued an order generally closing a
variety of services (such as bars, indoor dining, movie
theaters, and museums) statewide and closing other activities
(such as gyms, places of worship, hair salons, and malls) in
those counties that appeared on the State’s “County
Monitoring List” for more than three days.3 See Cal. State
Public Health Officer Order of July 13, 2020. On July 17,
2020, the California Department of Public Health (“CDPH”)
issued a “Reopening In-Person Learning Framework for K–
12 Schools” for the 2020–2021 school year (hereinafter the
“Framework”). Consistent with the authority granted in the
Governor’s May 4 order, this Framework established
“criteria” under which “local health jurisdiction[s]” could
deviate from the otherwise applicable statewide ban on in-
person learning.
Under the Framework’s criteria, a school generally could
reopen for in-person instruction only if the school’s local
health jurisdiction had not been on the County Monitoring
List for the preceding 14 days. If the local health jurisdiction
was on the County Monitoring List over that 14-day period,
then the school was required to “conduct distance learning
only.” After consultation with the CDPH, a local health
officer could grant a waiver from these criteria, but only in
the case of “elementary schools” and only if the relevant
school official requested it. As the CDPH later explained,
3 A county was placed on the County Monitoring List if it failed to
meet the State’s benchmarks on various measures, such as the rate of
new infections per 100,000 residents, the test positivity rate, and the rate
at which hospitalizations were increasing.

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BRACH V. N EWSOM 13
this waiver policy was justified due to the “lower risk of
child-to-child or child-to-adult transmission in children
under age 12,” and the “particularly low” “risk of infection
and serious illness in elementary school children.” Once a
school reopened, it was required to follow certain protocols,
but it was not required to close again simply because its local
health jurisdiction might later be placed on the County
Monitoring List. Nonetheless, the Framework set forth
guidelines for when closure of an individual school was
“recommended.” The Framework also specified that, “if
25% or more of schools in a district have closed due to
COVID-19 within 14 days,” then the relevant
“superintendent should close [the] school district.”
On August 3, 2020, the CDPH issued detailed guidance
for conducting any authorized in-person operations in
“Schools and School-Based Programs.”4 The guidance
covered such matters as face coverings, social distancing,
hand washing, disinfection, and ventilation. On the same
day, the CDPH issued an additional memorandum
concerning elementary-school waiver requests, and this
document stated that the CDPH recommended against
waivers for elementary schools in counties with 14-day case
rates of more than 200 cases per 100,000 people.
Later that same month, the CDPH issued guidance
allowing a “specified subset of children and youth” to meet
in “controlled, supervised, and indoor environments,” but
only in small “cohorts” of no more than 14 children, and with
4 Although the Q&A document accompanying this Guidance
characterized it as a binding “public health directive,” the extent to which
each of the various statements in this document constituted a binding
legal prescription is not always clear, because many of them were
couched in terms of what “should” be done rather than what “must” be
done.

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14 BRACH V. N EWSOM
no more than two supervising adults. Such cohorts could
meet at a school even if that school was otherwise not
authorized to conduct in-person instruction.
Simultaneously, the CDPH issued a further document that
was “intended to supplement” this cohort guidance. That
document clarified that the guidance was not intended “to
allow for in person instruction of all students,” but was
instead intended “to establish minimum parameters for
providing specialized services, targeted services and support
for students” whose schools are closed. Accordingly, the
document confirmed, only “[i]n-person targeted, specialized
support and services in stable cohorts is [sic] permissible”
(emphasis added). In describing what “qualifies as a
specialized and targeted support services [sic],” the
document states that this will be determined by “local
educational agencies,” but that the phrase “include[s] . . .
occupational therapy services, speech and language services,
and other medical services, behavioral services, educational
support services as part of a targeted intervention strategy or
assessments, such as those related to English learner status,
individualized educational programs and other required
assessments.”
On August 28, 2020, the Acting State Public Health
Officer issued an order announcing an “updated framework
for reopening,” which eventually became known as the
“Blueprint for a Safer Economy.” See Cal. State Public
Health Officer Order of Aug. 28, 2020. Under this new
system, California used specified metrics to assign each
county to one of four tiers, ranging from Tier 1 (indicating
“Widespread” community transmission) to Tier 4
(“Minimal” transmission). This August 28 order superseded
the prior July 13 order that relied on the “County Monitoring
List.” Id. Under the new order, “Tier 1” replaced the County
Monitoring List, although the criteria ultimately developed

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BRACH V. N EWSOM 15
for being assigned to that tier differed from those that would
have placed a county on the monitoring list. Id. Under the
“County Monitoring List” system, a county was placed on
the list if either (1) its 14-day case rate was over 100 per
100,000 people; or (2) both (i) its 14-day case rate was over
25 per 100,000 and (ii) its 7-day testing positivity rate was
over 8 percent. Under the tier system, a county would be
assigned to Tier 1 if either (1) its 7-day case rate was over
7 per 100,000 or (2) its 7-day test positivity rate was over
8 percent.
In subsequent guidance, the CDPH reiterated that the
July 17, 2020 school reopening “Framework” remained in
effect, except that any reference to the “County Monitoring
List” now referred to “Tier 1” counties. Accordingly,
“[s]chools in counties within Tier 1 [we]re not permitted to
reopen for in-person instruction,” except pursuant to the
waiver process for certain elementary school grades. Once
a county fell out of Tier 1 for 14 days, then schools were
“eligible for reopening at least some in-person instruction”
in accordance with the applicable protocols. The CDPH also
reaffirmed that, once a school reopened, it was not required
to close again even if its county “move[d] back to Tier 1.”
After the district court granted summary judgment in this
case, the CDPH revised its school reopening framework on
January 14, 2021. Under the State’s updated “Reopening In-
Person Instruction Framework” (hereinafter the “Revised
Framework”),5 elementary schools in Tier 1 could open for
5 The State’s unopposed motions for judicial notice are hereby
GRANTED. As the State’s initial request for judicial notice explains,
intervening revisions to California’s various orders supersede some of
the provisions that Plaintiffs sought to enjoin and are to that extent
necessarily relevant to this appeal from the denial of Plaintiffs’ claims

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16 BRACH V. N EWSOM
in-person instruction if the county’s adjusted case rate
remained below 25 cases per 100,000 people per day for at
least five consecutive days. In connection with this
loosening of the elementary-school closure rules, the
Revised Framework terminated the pre-existing waiver
process (although previously granted waivers remain valid).
This Revised Framework was further updated on March 20,
2021 to allow schools to reopen for in-person instruction for
all grades K–12 if the adjusted weekly county case rate fell
below 25 per 100,000 population per day.6 Schools had at
least three weeks to reopen, even if the county adjusted case
rate subsequently surpassed 25 per 100,000 per day. If a
school did not reopen within the three-week eligibility
window and the case rates once again rose above the
reopening threshold, the school was presumably not
permitted to reopen for in-person instruction.
In addition, Assembly Bill 86 was enacted into law on
March 5, 2021, and it imposed several requirements in
connection with the provision of in-person instruction. See
2021 Cal. Stat. ch. 10 (A.B. 86). In particular, the law
for declaratory and injunctive relief. We likewise take judicial notice of
the State’s more recent orders making further relevant modifications. To
the extent that some of the items attached to the State’s most recent
motion might not otherwise be subject to judicial notice, we consider
those items in light of Plaintiffs’ lack of objection, but only for the
limited purpose for which they were offered (namely, to address the issue
of mootness). Because Plaintiffs’ opposed motion requests judicial
notice of press releases and public statements, rather than operative
orders and guidance, we DENY that motion.
6 The Revised Framework was later updated but remained the same
in the material respects discussed here. See Revised Framework
(June 4, 2021), https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/
COVID-19/COVID19-K12-Schools-InPerson-Instruction.aspx#In-Pers
on%20School%20Reopening.

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BRACH V. N EWSOM 17
requires that, at least five days before providing in-person
instruction for grades 1 to 12, any local educational agency
or private school must “post a completed COVID-19 safety
plan on its internet website home page.” See Cal. Educ.
Code § 32091(b)(1). If a public school is in a county in Tier
1, then its safety plan must also be submitted to the CDPH
and the relevant local health agency five days before
reopening. Id. § 32091(b)(2). In Tier 1 counties, a public
school may not provide in-person instruction until it resolves
any deficiencies in its safety plan identified by CDPH or the
relevant local health agency. Id.
On June 11, 2021, the Governor issued Executive Order
N-07-21, which formally revoked both Executive Order N-
33-20 (the stay-at-home order) and Executive Order N-60-
20 (the order on which the State’s Blueprint framework of
restrictions was based). See Cal. Exec. Order N-07-21 (June
11, 2021). As a result, “all restrictions on businesses and
activities deriving from that framework, including all aspects
of the Blueprint for a Safer Economy,” were rescinded. Id.
The new order, however, expressly preserves the State
Public Health Officer’s authority to issue Covid-related
directives and to do so without regard to the restrictions of
California’s APA.7 Id. Contemporaneously with the
issuance of this new executive order, the State Public Health
7 To the extent that the dissent suggests that the State has eliminated
the obligation to obey orders of the State Public Health Officer, see
Dissent at 59, that is wrong. Executive Order N-07-21’s recitals
specifically reaffirm that, under the existing provisions of the California
Health and Safety Code and other laws, the State Public Health Officer
is “empowered to issue mandatory public health directives to protect the
public health in response to a contagious disease,” and the order then
continues to expressly exempt “any Orders, guidance, or directives of the
State Public Health Officer relating to COVID-19” from the provisions
of California’s APA. See Cal. Exec. Order N-07-21 (emphasis added).

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18 BRACH V. N EWSOM
Officer issued an order, effective June 15, 2021, preserving
a limited set of statewide restrictions, including guidance
concerning face coverings and provisions governing so-
called “Mega Events.” See Cal. State Public Health Officer
Order of June 11, 2021.8 Notably, this order specifically
preserved “the current COVID-19 Public Health Guidance
for K–12 Schools in California, the current COVID-19
Public Health Guidance for Child Care Programs and
Providers, and the portions of the current K–12 Schools
guidance that have been made explicitly applicable to day
camps and other supervised youth activities.” Id. That
Guidance for K–12 schools, in turn, specifically stated that
the “Blueprint for a Safer Economy continues to inform the
school reopening process.” See Revised Framework (June
4, 2021). Thus, while all other industries and sectors were
no longer governed by the Blueprint, the school reopening
process continued to be “based on Tiers, defined using the
[county case rate], the 7-day average of daily COVID-19
cases per 100,000 population, and the test positivity in a
county.” Id.
On July 12, 2021, the CDPH issued guidance for the
upcoming 2021–2022 school year that adopts a new
framework that emphasizes masking and other measures,
with the stated aim of maximizing opportunities for in-
person instruction. See CDPH, COVID-19 Public Health
Guidance for K–12 Schools in California, 2021-22 School
8 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-
19/Order-of-the-State-Public-Health-Officer-Beyond-Blueprint.aspx.
See also Beyond the Blueprint for Industry and Business Sectors,
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Bey
ond-Blueprint-Framework.aspx.

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BRACH V. N EWSOM 19
Year.9 The guidance states that its requirements and
recommendations are “designed,” based on the “current
scientific evidence about COVID-19,” “to enable all schools
to offer and provide full in-person instruction.” Although
the guidance states that CDPH’s objective is to enable in-
person instruction to continue “even if pandemic dynamics
shift,” the guidance does not expressly foreclose the
possibility that school closures could be required in the
future. Id. Indeed, the guidance reaffirms its provisional
nature by stating that it “will be reviewed regularly by the
[CDPH],” which “will continue to assess conditions on an
ongoing basis.” Id.
B
On July 21, 2020, Plaintiffs filed suit against California
requesting declaratory and injunction relief. Plaintiffs
subsequently sought a temporary restraining order (“TRO”),
which the district court denied. Shortly thereafter, the
district court requested briefing on whether it should grant
summary judgment sua sponte. In opposing summary
judgment, Plaintiffs relied largely on the factual presentation
they had made in connection with their earlier-filed TRO and
preliminary injunction motions. Those submissions
included declarations from each of the adult Plaintiffs, and
these declarations constitute the primary record evidence
concerning the individual Plaintiffs’ respective factual
situations.
The declarations submitted by the public-school
Plaintiffs assert that their children have been harmed by
distance learning. For example, Matthew Brach describes
9 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-
19/K–12-Guidance-2021-22-School-Year.aspx.

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20 BRACH V. N EWSOM
detrimental academic and social impacts on his two children.
He further asserts that his school district had taken steps “to
be able to safely reopen” the schools that his children attend.
These steps included purchasing personal protective
equipment, handwashing stations, and individual water
filling stations, as well as implementing a mitigation strategy
comprising, inter alia, staggered arrival times, a lunchtime
“grab/go” model, and mask requirements.
The private-school Plaintiffs submitted similar
declarations, alleging that their children have suffered
emotionally or academically as a result of California’s
distance-learning mandates. One of these parents, Roger
Hackett, has a sixth-grade son who attends Oaks Christian
School in Los Angeles County. Hackett alleges that Oaks
Christian would have provided in-person instruction but
could not do so due to the State’s orders. Consequently, his
son has received only “remote learning,” which in Hackett’s
view “does NOT come close to replacing actual in-school,
in-person teaching and learning.” Hackett attested that he
would immediately send his son back to school for in-person
instruction upon reopening.
After receiving briefing, the district court granted
summary judgment to California on December 1, 2020. This
expedited appeal followed. “We review de novo the district
court’s grant of summary judgment.” Oswalt v. Resolute
Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011). “[V]iewing
the evidence in the light most favorable to the nonmoving
party,” we must determine “whether there are any genuine
issues of material fact and whether the district court correctly
applied the relevant substantive law.” Id.

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BRACH V. N EWSOM 21
II
Before turning to the merits of Plaintiffs’ claims, we first
address the threshold issue of whether their claims are
moot.10 After oral argument on March 2, 2021, the counties
in which Plaintiffs’ schools operate were reclassified so that
they no longer fell within Tier 1. The State reclassified Santa
Clara County to Tier 2 on March 2; Los Angeles and Orange
Counties on March 9; and San Diego, Riverside, and
Ventura Counties on March 16.11 In light of these post-
argument developments, we requested and received
supplemental briefs from the parties as to whether this matter
was now moot. See St. Paul Fire & Marine Ins. Co. v. Barry,
10 On appeal, California has not contested the Plaintiffs’ Article III
standing to bring this suit, and in our view, properly so. Although a few
of the declarations presented by Plaintiffs are somewhat barebones, they
nonetheless provide a reasonable basis for concluding that their schools’
closures were not voluntary but were instead fairly traceable to the
State’s prohibition on in-person instruction. The declarations therefore
likewise confirm that injunctive and declaratory relief would redress
Plaintiffs’ injuries by ensuring that those schools can provide in-person
instruction. That is sufficient to establish the elements of Article III
standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (To
establish standing, “[t]he plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial
decision.”). At the very least, Plaintiffs Brach’s and Hackett’s
declarations amply establish standing by specifically averring that their
children’s schools were preparing to open for in-person instruction in fall
2020 but were thwarted by the State’s orders.
11 See CDPH, California Blueprint Data Archive,
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Cali
forniaBlueprintDataCharts.aspx. A new tier status “goes into effect the
Wednesday following each weekly tier assignment announcement on
Tuesdays.” See CDPH, Blueprint for a Safer Economy,
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/CO
VID19CountyMonitoringOverview.aspx.

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22 BRACH V. N EWSOM
438 U.S. 531, 537 (1978) (because mootness “implicates our
jurisdiction,” court has an obligation to raise it sua sponte);
see also Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086
(9th Cir. 2011) (“[A]n actual, ongoing controversy [must]
exist at all stages of federal court proceedings.”).
The supplemental materials submitted by the State in
support of mootness indicate that several of the public-
school Plaintiffs’ schools opened for in-person instruction
before the end of the 2020–2021 school year. Those
materials do not affirmatively show that any of the private
schools had similarly reopened before the end of the 2020–
2021 school year, but the district court record already
indicates that Erica Sephton’s child’s school reopened
pursuant to a school-specific waiver in the fall of 2020.
Although the evidence it cites is somewhat unclear, the State
represents that Oaks Christian School, which Hackett’s child
attends, reopened before the end of the 2020–2021 school
year. At the very least, once their counties were given their
new tier assignments, all of Plaintiffs’ schools became
eligible to reopen under the State’s Revised Framework.12
Under that framework, any schools that actually reopened
would not need to close again even if the school’s county
returned to Tier 1. And, as noted earlier, the State recently
12 The dissent notes that a special law regulating the provision of
“distance learning” in public school during the 2020–2021 school year
became inoperative, by its terms, on June 30, 2021. See CAL. EDUC .
CODE §§ 43503, 43511. See Dissent at 60 n.3. To the extent that the
dissent thereby insinuates that the lapsing of this statute would somehow
prevent a reclosure of schools under the same executive authorities that
Defendants invoked, there is no support for that suggestion. Indeed, the
dissent overlooks the fact that in March 2020, well before that now-
lapsed law took effect, schools in California were already limited to
distance learning under those executive authorities. See supra at 10.

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BRACH V. N EWSOM 23
released new guidance for the 2021–2022 school year that
does not rely on the tier system or school closures.
Our analysis of mootness in this case is framed by the
Supreme Court’s recent decision in Roman Catholic Diocese
of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). There, the
Court rejected a comparable claim of mootness in
connection with the plaintiffs’ challenge to New York’s
system of Covid restrictions, which used an analogous
“zone” system to impose capacity limits for religious
services. Similar to California’s tier-based system for
counties, New York’s system classified geographic areas
within counties or cities into zones based on a combination
of pre-set thresholds and other criteria. In New York’s case,
the thresholds for each respective zone were based on the “7-
day rolling average positivity rate” as well as the rate of
“new daily cases per 100,000 residents on [a] 7-day
average.”13 At the time they first sought relief, the New
York plaintiffs’ relevant facilities were in either “red” zones,
in which “no more than 10 persons may attend each religious
service,” or in “orange” zones, in which “attendance is
capped at 25.” 141 S. Ct. at 66. By the time the matter
reached the Supreme Court, however, the State had
“reclassified the areas in question from orange to yellow, and
this change mean[t] that the applicants [could] hold services
at 50% of their maximum occupancy.” Id. at 68. The Court
declined to treat the matter as moot, citing cases involving
the voluntary cessation doctrine, see id. (citing Friends of the
Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 189 (2000)), and the rule governing disputes that are
capable of repetition but evading review, see id. (citing
13 See New York “Micro-Cluster” Strategy (Oct. 21, 2020),
https://www.governor.ny.gov/sites/default/files/atoms/files/MicroClust
er_Metrics_10.21.20_FINAL.pdf.

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24 BRACH V. N EWSOM
Federal Election Comm’n v. Wisconsin Right to Life, Inc.,
551 U.S. 449, 462 (2007)). As the Court explained, the
plaintiffs remained under a threat that the areas would be
reclassified, and in the event that that happened, the
plaintiffs would likely not be able to secure relief from the
Court before experiencing irreparable harm. Id. Under these
circumstances, the plaintiffs should not have to “bear the risk
of suffering further irreparable harm in the event of another
reclassification.” Id. at 68–69.
We conclude that the same two doctrines invoked in
Diocese of Brooklyn also apply here and confirm that this
case is not moot.14
A
To the extent that the State has now removed its prior per
se school-closure order, that is a result of the State’s
voluntary conduct in repeatedly changing the framework of
restrictions. The general rule is that a “voluntary cessation
of allegedly illegal conduct does not deprive the [court] of
power to hear and determine the case, i.e., does not make the
case moot.” United States v. W.T. Grant Co., 345 U.S. 629,
14 The dissent suggests that Diocese of Brooklyn may not have relied
on the voluntary cessation doctrine at all, because (according to the
dissent) the Court focused its discussion on the rule governing disputes
that are capable of repetition yet evading review. See Dissent at 63 n.4.
That is wrong. On the page of Friends of the Earth that Diocese of
Brooklyn cites, the Court discussed and relied upon only the doctrine of
voluntary cessation. See 528 U.S. at 189 (“The only conceivable basis
for a finding of mootness in this case is [Defendant’s] voluntary
conduct.”). Friends of the Earth does not even mention the capable-of-
repetition-but-evading-review doctrine until several pages later, and then
only for the limited purpose of explaining why a mootness inquiry is
distinct from an Article III standing inquiry. Id. at 190–91. Diocese of
Brooklyn thus squarely relied on the voluntary cessation doctrine.

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BRACH V. N EWSOM 25
632 (1953). To establish mootness in such circumstances,
the defendants bear the “heavy” burden of demonstrating
that “‘there is no reasonable expectation that the wrong will
be repeated.’” Id. at 633 (citation omitted); see also Friends
of the Earth, 528 U.S. at 189 (“The heavy burden of
persuading the court that the challenged conduct cannot
reasonably be expected to start up again lies with the party
asserting mootness.” (simplified)). California has failed to
carry that heavy burden here.
California argues that the voluntary cessation doctrine
does not apply at all, because, in its view, the case became
moot when the relevant counties were reclassified into lower
tiers, and that reclassification, according to the State, is
attributable to changes in underlying Covid infection rates,
rather than to any changes in California’s directives. This
argument is foreclosed by Diocese of Brooklyn. There, the
Supreme Court applied the voluntary cessation doctrine,
even though the change in the applicable restrictions was due
to reclassifications within the zone system established by the
New York Governor’s executive order, rather than to the
adoption of a new system. See 141 S. Ct. at 68–69. The
Court recognized that New York’s then-current matrix of
Covid-related restrictions could hardly be treated as if it
were an independently determined system that limited the
Governor’s discretion and ensured that the challenged
restrictions would never be reinstated. The Court thus
necessarily rejected the very same argument that California
presses here.
Because the voluntary session doctrine applies in this
case, the question is whether the State has carried its
“formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be
expected to recur.” Friends of the Earth, 528 U.S. at 190

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26 BRACH V. N EWSOM
(emphasis added). California has failed to do so. The State’s
supplemental brief insists that it is “entirely speculative”
whether Defendants would ever choose to reinstate a school-
closure order, and the dissent contends that this comment
shows that the State has “disclaimed any such intention.”
See Dissent at 64. On the contrary, the State’s coy assertion
that it is “speculative” whether it might close schools again
merely underscores the State’s refusal even to say that it will
not do so.
Moreover, as the Supreme Court explained in rejecting
California’s most recent—and comparable—mootness
argument, a challenge to state restrictions is not moot when
“officials with a track record of ‘moving the goalposts’
retain authority to reinstate those heightened restrictions at
any time.” Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021)
(quoting South Bay United Pentecostal Church v. Newsom,
141 S. Ct. 716, 720 (2021) (Gorsuch, J., statement)). So too,
here, nearly the entire edifice of California’s oft-changing
Covid-related restrictions is the product of Defendants’ own
unilateral decrees, which have rested on a comparable
retention of unbridled emergency authority to promulgate
whatever detailed restrictions Defendants think will best
serve the public health and the public interest at any given
moment.
Thus, during the course of this litigation, Defendants
have previously tightened Covid-related school restrictions
as they have deemed warranted, most notably when they
replaced the “County Monitoring List” with a stricter set of
criteria that made it easier for counties to fall under the
State’s school-closure mandate. See supra at 14–15. More
recently, they loosened the relevant criteria, thereby
facilitating an earlier escape from that restriction by some
counties’ schools. See supra at 15. In doing so, Defendants

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BRACH V. N EWSOM 27
at first notably refrained from abolishing the revised school
reopening framework despite the State’s decision to exempt
all other industry and retail sectors from the restrictions
imposed under the “Blueprint for a Safer Economy.” See
supra at 17–18. Although the CDPH has now released a new
framework for the 2021–2022 school year that does not
include reliance upon school closures, the Governor and the
State Public Health Officer still retain the authority to alter
the rules at a moment’s notice should changing
circumstances, in their view, warrant new restrictions. See
Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d 1228,
1230 n.1 (9th Cir. 2020) (revocation of challenged directive
did not moot plaintiffs’ claims because “Governor Sisolak
could restore the Directive’s restrictions just as easily as he
replaced them, or impose even more severe restrictions”).
And they have reserved the authority to do so without having
to comply with any particular procedural restraints: as noted
earlier, see supra at 17, the Governor’s most recent
executive order continues to waive the requirements of
California’s APA for any Covid-related CDPH restrictions.
The zig-zag course of California’s various Covid-related
restrictions confirms that the current easing is attributable to
Defendants’ voluntary conduct and does not render the case
moot. See, e.g., Kikumura v. Turner, 28 F.3d 592, 597 (7th
Cir. 1994) (no mootness of constitutional claim seeking
injunctive and declaratory relief where public official’s
policies had “ebbed and flowed throughout the course of the
litigation”).
Accordingly, if the CDPH became concerned that case
rates are increasing, that the pace of immunization has
slowed, and that new variants pose a threat, it has the
authority to swiftly revise the relevant restrictions and
reimpose school closures, even for reopened schools, in
specified areas. The dissent entirely discounts this

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28 BRACH V. N EWSOM
possibility, see Dissent at 13, but it provides no justification
for its certainty. There is no basis for contending that current
case rates are low enough, by themselves, to eliminate any
reasonable possibility of a future school-closure order.
Indeed, recent case rates in some areas have begun to edge
back up towards levels that, under earlier iterations of
Defendants’ restrictions, would have landed a county in Tier
1 and would have triggered an order to keep schools closed.
For example, Defendants at one point used a low 7-day
average daily case rate of 7 cases per 100,000 as a
benchmark for keeping schools closed, see supra at 15, and
Los Angeles County’s 7-day average daily case rate has
exceeded that number ever since July 9, 2021,15 as the new
“Delta” variant of Covid has begun to spread.
The dissent claims that, even if Covid rates “rise, perhaps
even precipitously,” it is already clear that the State will
never again impose distance-learning requirements. See
Dissent at 63–65. This unsupported speculation ignores the
State’s heavy burden. Although the State’s current policy
does not rely on school closures and expresses a strong
preference for in-person instruction, the question is whether
the State has shown that it is “absolutely clear” that “the
allegedly wrongful behavior could not reasonably be
expected to recur.” Friends of the Earth, 528 U.S. at 190.
Indeed, as the dissent itself notes, a prior surge last summer
caused the State to reverse course and abandon its previous
school reopening plans. See Dissent at 57 n.1. Given the
State’s “track record of ‘moving the goalposts’”; its retention
of broad “authority to reinstate those heightened restrictions
at any time”; and its failure to expressly foreswear ever using
school closures again, Tandon, 141 S. Ct. at 1297 (citation
15 Tracking COVID-19 in California, https://covid19.ca.gov/state-
dashboard/#location-los_angeles.

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BRACH V. N EWSOM 29
omitted), we cannot say that the State has carried its
“formidable burden” under the voluntary cessation doctrine,
Friends of the Earth, 528 U.S. at 190.
B
For related reasons, the restrictions at issue here also fall
squarely into the category of official acts that are “capable
of repetition, yet evading review.” Southern Pac. Terminal
Co. v. Interstate Com. Comm’n, 219 U.S. 498, 515 (1911);
see also Wisconsin Right to Life, 551 U.S. at 462. Were we
to treat this case as moot, the case would have evaded review
despite the Plaintiffs’ best efforts to expedite it, and a future
case would likely suffer the same fate. Plaintiffs here have
moved with dispatch throughout this litigation, and yet it
took seven months from the filing of their First Amended
Complaint in July 2020 for the matter to be presented to this
court for decision on the merits. And even that pace was
achieved only because Plaintiffs sought expedited treatment
in this court and successfully resisted the State’s efforts to
prolong the briefing schedule and to defer the oral argument.
Were California again to enforce a distance-learning
mandate on Plaintiffs’ schools, by the time a future case
challenging the new mandate could receive complete
judicial review, which includes Supreme Court review, the
State would likely have again changed its restrictions before
that process could be completed. Effective relief likely
could not be provided in the event of any recurrence, which
makes this a paradigmatic case for applying the doctrine of
“capable of repetition, yet evading review.” See Alaska Ctr.
for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 855–56 (9th
Cir. 1999) (two-year permit could be reviewed despite
expiration because two years were not enough to guarantee
“complete judicial review, which includes Supreme Court
review under our precedent”).

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30 BRACH V. N EWSOM
Here, too, the dissent fails to apply the correct legal
standard. It misreads Diocese of Brooklyn to say that the
capable-of-repetition-yet-evading-review doctrine would
apply here only if Plaintiffs “remain[ed] under a ‘constant
threat’ that the challenged restrictions will be reimposed.”
See Dissent at 67 (quoting 141 S. Ct. at 68) (emphasis
added). But Diocese of Brooklyn did not change the long-
settled standard, which is whether there is a “reasonable
expectation” that the same controversy will recur.
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969,
1976 (2016); Honig v. Doe, 484 U.S. 305, 318 n.6 (1988)
(“[W]e have found controversies capable of repetition based
on expectations that, while reasonable, were hardly
demonstrably probable.”); see also Ackley v. Western Conf.
of Teamsters, 958 F.2d 1463, 1469 (9th Cir. 1992) (noting
that it is “the defendant, not the plaintiff, who must
demonstrate that the alleged wrong will not recur”). There
was clearly such a reasonable possibility of reoccurrence in
Diocese of Brooklyn, given the “constant threat” the
plaintiffs in that case faced. 141 S. Ct. at 68. But in finding
that circumstance sufficient to trigger the doctrine, the Court
did not hold that a finding of a “constant threat” was now
necessary to invoke the doctrine. And for substantially the
same reasons set forth earlier, we conclude that California
has failed to carry its burden to show that there is no
“reasonable expectation” this dispute will recur.
Kingdomware Techs., 136 S. Ct. at 1976.
* * *
We therefore conclude that under both the voluntary
cessation doctrine and the rule concerning disputes that are
“capable of repetition, yet evading review,” neither the
public-school nor private-school Plaintiffs’ claims are moot.

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BRACH V. N EWSOM 31
III
Having concluded that the case is not moot, we turn first
to the merits of Plaintiffs’ due process claims. In doing so,
we consider separately the distinct substantive due process
claims of the public-school Plaintiffs and those of the
private-school Plaintiffs. We conclude that the district court
correctly granted summary judgment dismissing the former
claims, but it erred in dismissing the latter.
A
The Due Process Clause of the Fourteenth Amendment
provides that no State shall “deprive any person of life,
liberty, or property, without due process of law.” U.S.
CONST. amend. XIV, § 1. The Supreme Court has
interpreted this guarantee “to include a substantive
component, which forbids the government to infringe certain
‘fundamental’ liberty interests at all, no matter what process
is provided, unless the infringement is narrowly tailored to
serve a compelling state interest.” Reno v. Flores, 507 U.S.
292, 301–02 (1993). The public-school Plaintiffs contend
that one of the substantive protections conferred by the Due
Process Clause is an “affirmative right to public-school
education” that meets a “basic minimum” level of
instruction. This contention fails, because the Supreme
Court has repeatedly declined to “accept[] the proposition
that education is a ‘fundamental right,’” Kadrmas v.
Dickinson Pub. Schs., 487 U.S. 450, 458 (1988), and we
have likewise stated that there is “no enforceable federal
constitutional right to a public education,” Payne v.
Peninsula Sch. Dist., 653 F.3d 863, 880 (9th Cir. 2011) (en
banc) (citation omitted), overruled on other grounds in
Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en
banc).

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32 BRACH V. N EWSOM
The Supreme Court’s decision in San Antonio
Independent School District v. Rodriguez, 411 U.S. 1 (1973),
is particularly instructive. There, the Court addressed a
claim that the “Texas system of financing public education”
violated the Equal Protection Clause of the Fourteenth
Amendment. See id. at 4–6. In assessing what level of
scrutiny was applicable to the distinctions drawn by that
system, the Court considered and expressly rejected the
plaintiffs’ claim that strict scrutiny must be applied because
“the State’s system impermissibly interferes with the
exercise of a ‘fundamental’ right,” viz., the asserted
fundamental right to an education. Id. at 29; see also id.
at 35–39.
The Court noted that “[e]ducation, of course, is not
among the rights afforded explicit protection under our
Federal Constitution,” and it concluded that there was also
no “basis for saying it is implicitly so protected.” Id. at 35.
In reaching that conclusion, the Court emphasized that the
asserted right to have the state affirmatively provide an
education was “significantly different from any of the cases
in which the Court has applied strict scrutiny to state or
federal legislation touching upon constitutionally protected
rights,” inasmuch as those prior cases all “involved
legislation which ‘deprived,’ ‘infringed,’ or ‘interfered’ with
the free exercise of some such fundamental personal right or
liberty.” Id. at 37–38 (emphasis added) (citations omitted).
The Court rejected the plaintiffs’ contention that “education
is distinguishable from other services and benefits provided
by the State,” assertedly due to its importance in exercising
other rights, such as “First Amendment freedoms” and the
“right to vote.” Id. at 35. As the Court explained, the
plaintiffs’ argument had no logical stopping point, because
in terms of its contribution to the ability to exercise such
other rights, education could not be meaningfully

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BRACH V. N EWSOM 33
distinguished from other asserted rights-to-benefits that the
Court had steadfastly declined to recognize, such a right to
“the basics of decent food and shelter.” Id. at 37 (citing
Lindsey v. Normet, 405 U.S. 56, 73–74 (1972); Dandridge v.
Williams, 397 U.S. 471, 485 (1970)). There was thus a
“critical distinction,” the Court concluded, between
“‘denying fundamental rights’” and failing to do enough to
provide a benefit that would facilitate the exercise of
fundamental rights. Id. at 38–39 (citation omitted). Further
underscoring this distinction, the Court cited in contrast its
prior cases invalidating state laws that interfered with the
fundamental right of parents to choose their own private
educational forum for their children. Id. at 39 n.82 (citing
Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society
of Sisters, 268 U.S. 510 (1925)).
Subsequent Supreme Court decisions have similarly
reaffirmed that “[p]ublic education is not a ‘right’ granted to
individuals by the Constitution.” Plyler v. Doe, 457 U.S.
202, 221 (1982) (quoting Rodriguez, 411 U.S. at 35); see
also Kadrmas, 487 U.S. at 458; Papasan v. Allain, 478 U.S.
265, 284 (1986). We have likewise declined to recognize
the existence of a “federal constitutional right to a public
education.” Payne, 653 F.3d at 880 (citing Plyler, 457 U.S.
at 221); see also Guadalupe Org., Inc. v. Tempe Elementary
Sch. Dist. No. 3, 587 F.2d 1022, 1026 (9th Cir. 1978)
(“[E]ducation, although an important interest, is not
guaranteed by the Constitution” and “is not a fundamental
right.”).
Plaintiffs nonetheless point to language in Rodriguez and
Plyler that they contend supports the view that a failure to
provide a minimum education would violate substantive due
process rights. See Rodriguez, 411 U.S. at 25 n.60 (noting
that the question before the Court would have been different

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34 BRACH V. N EWSOM
had Texas “absolutely precluded” a class of persons “from
receiving an education”); id. at 37 (concluding that the
record did not support the view that the Texas “system fails
to provide each child with an opportunity to acquire the basic
minimal skills” needed to exercise other rights); Plyler,
457 U.S. at 223 (noting that the statute at issue deprived a
“discrete class of children”—those unlawfully present in the
U.S.—of a “basic education”); cf. Papasan, 478 U.S. at 285
(“As Rodriguez and Plyler indicate, this Court has not yet
definitively settled the question[] whether a minimally
adequate education is a fundamental right.”). They point in
particular to Plyler’s holding that, although education is not
a fundamental right, the denial of a “basic education” to “a
discrete class of children not accountable for their disabling
status” requires a heightened level of constitutional scrutiny.
457 U.S. at 223–24.16 But given the Supreme Court’s
admonition that the courts must “‘exercise the utmost care
whenever we are asked to break new ground’” in the field of
substantive due process, see Washington v. Glucksberg,
521 U.S. 702, 720 (1997) (citation omitted), and the Court’s
express refusal to extend Plyler’s “holding beyond the
unique circumstances that provoked its unique confluence of
theories and rationales,” Kadrmas, 487 U.S. at 459
(simplified), we have no license to recognize such a novel
right here.
Moreover, even if there were grounds to recognize such
a right in an appropriate case, Plaintiffs have failed to show
16 In United States v. Harding, 971 F.2d 410 (9th Cir. 1992), we
referred to this holding in Plyler as recognizing a “quasi-fundamental”
right to “access to public education.” Id. at 412 n.1. Harding was a case
about the constitutionality of crack cocaine sentencing laws and had
nothing whatsoever to do with public education or with denying benefits
to aliens unlawfully present in the United States. Its passing description
of Plyler therefore adds nothing to Plyler itself and is, in any event, dicta.

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BRACH V. N EWSOM 35
that this is such a case. In this regard, Plaintiffs seem to have
lost sight of the fact that this case was not brought as a class
action. Accordingly, to establish a violation of their asserted
constitutional right to a basic minimum education, Plaintiffs
had the burden to present sufficient evidence to establish that
their children (or Plaintiff Z.R. himself, in the case of the
one student Plaintiff) were not actually receiving a basic
minimum education. On this score, Plaintiffs’ barebones
declarations are inadequate to create a triable issue of fact.
Nearly all of Plaintiffs’ declarations on this point are
conclusory and lack sufficient factual detail to establish that
the difficulties of the distance-learning method have caused
or will cause their children to be deprived of a basic
minimum education. The only possible exceptions are the
declarations of those Plaintiffs who assert that their children
are no longer receiving their “individualized education
programs” and are not receiving the “free appropriate public
education” that is guaranteed to them under the federal
Individuals with Disabilities Education Act (“IDEA”),
20 U.S.C. § 1400 et seq. But in our en banc decision in
Payne, we held that a claim for a denial of a free appropriate
public education—including the failure to provide the
assistance needed to learn basic skills such as reading—“can
arise only under the IDEA because there is no other federal
cause of action for such a claim.” 653 F.3d at 880 (emphasis
added). In reaching that conclusion, we specifically cited
Plyler for the proposition that there is “no enforceable
federal constitutional right to a public education.” Id. Thus,
to the extent that the public-school Plaintiffs’ claimed
constitutional right to a basic minimum education is not

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36 BRACH V. N EWSOM
wholly unsupported as a factual matter, it is squarely barred
by our decision in Payne.17
The public-school Plaintiffs have thus failed to show that
they have been deprived of a fundamental right that is
recognized under the Supreme Court’s or this court’s
caselaw. Consequently, in reviewing their substantive due
process challenge to the provision of public education via
distance learning, we ask only whether the State’s actions
“bear[] a rational relation to a legitimate government
objective.” Kadrmas, 487 U.S. at 461–62. California’s
actions readily satisfy that deferential standard. Abating the
Covid pandemic is not only a legitimate state interest, but a
compelling one, Diocese of Brooklyn, 141 S. Ct. at 67, and
California has provided an ample basis for concluding that,
as a matter of law, its refusal to allow in-person public school
instruction is rationally related to furthering that interest.
We therefore affirm the district court’s grant of summary
judgment to California with respect to the claims of the
public-school Plaintiffs.
B
As explained above, the primary reason that the claims
of the public-school Plaintiffs fail is that the case authority
from the Supreme Court and this court has declined to
recognize a federal substantive due process right to the
provision of a public education. But the claims of the
private-school Plaintiffs do not stand on the same footing,
17 Although the Plaintiffs who alleged a denial of a “free appropriate
public education” had asserted a claim under the IDEA in the district
court, that claim has been abandoned on appeal.

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BRACH V. N EWSOM 37
and the district court erred in dismissing these claims on
summary judgment.
1
Plaintiffs’ opening brief on appeal squarely raises the
argument that California’s school-closure policies violate
the fundamental right of several Plaintiffs to educate their
children at in-person, private schools, thus divesting them of
the “choice of the educational forum itself.” Fields v.
Palmdale Sch. Dist., 427 F.3d 1197, 1207 (9th Cir. 2005);
see also Pierce, 268 U.S. 510; Meyer, 262 U.S. 390. “This
right is commonly referred to as the Meyer-Pierce right.”
Fields, 427 F.3d at 1204. However, the State argues that this
contention was not sufficiently raised and preserved in the
district court. We disagree.
In Plaintiffs’ operative complaint, Plaintiffs generally
alleged that their “Substantive Due Process” rights under the
Fourteenth Amendment had been violated by the school-
closure orders, which “effectively preclud[ed] [their]
children from receiving a basic minimum education.”
Plaintiffs’ claims must be understood against the backdrop
of the relevant caselaw, which (as explained earlier) draws a
sharp distinction between the alleged fundamental right to
the provision of a basic minimum public education and the
Meyer-Pierce right to be free of government interference in
the choice of a private educational forum. See supra at 32–
33. Thus, as applied to the private-school Plaintiffs, the
complaint’s substantive due process claim cannot
reasonably be understood as alleging that the State had failed
in its obligation to provide “a basic minimum education,”
because those Plaintiffs were not asking the State to provide
one. Rather, as to these Plaintiffs, this claim can only be
understood as asserting that the State was unconstitutionally
interfering with these Plaintiffs’ effort to choose the forum

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38 BRACH V. N EWSOM
that they believed would provide their children with an
adequate education. These Plaintiffs’ claims thus
necessarily rested on the Meyer-Pierce fundamental right of
parents to choose their children’s educational forum. That is
especially true given that the allegations of a complaint must
be generously construed in the light most favorable to the
plaintiff. See Adams v. Johnson, 355 F.3d 1179, 1183 (9th
Cir. 2004).18
The two distinct threads of Plaintiffs’ claim were also
reflected in their district court papers seeking a TRO and an
order to show cause why a preliminary injunction should not
issue. For example, their reply memorandum in support of
that motion argued both that “[s]tate-provided education”
was a fundamental right and that the parental right “‘to
control the education of their’ children” that was recognized
in “Meyer v. Nebraska, 262 U.S. 390, 401 (1923),” was “at
least a ‘quasi-fundamental right.’” Of course, the private-
school Plaintiffs were not asserting that their children were
being deprived of a “state-provided education,” but only that
the State was interfering with these Plaintiffs’ right to
control the education of their children at the private forum of
their choice. Plaintiffs’ opening memorandum in support of
that same motion likewise emphasized the State’s
interference with both “State-provided or -permitted
education.” Once again, because the private-school
Plaintiffs were clearly not complaining about the lack of a
18 It is thus “neither logically nor actually the case” that the private-
school Plaintiffs must be understood as only asserting an (inapplicable)
claim that the State was failing to provide them with a basic minimum
education. See Dissent at 71.

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BRACH V. N EWSOM 39
“State-provided” education, their claims can only be
understood as asserting the Meyer-Pierce right.19
After the district court denied Plaintiffs’ motion for a
TRO and instead requested briefing on whether it should
grant summary judgment sua sponte, Plaintiffs’ opposition
again emphasized both the State’s failure to provide an
education and its affirmative interference with children
obtaining the education their parents had chosen for them.
In response to the district court’s observation, in its TRO-
denial order, that states have broad discretion as to the
manner in which public education is provided, Plaintiffs
argued both that this comment rested on too narrow a view
of state-provided benefits and that, in all events, the State
may not act so as to affirmatively “deprive children of the
right to a minimum education altogether” (emphasis added).
In support of this point, Plaintiffs cited Fields v. Palmdale
School District, 427 F.3d 1197, in which we held that the
Meyer-Pierce right generally does not give parents the
authority “to interfere with a public school’s decision as to
how it will provide information to its students,” but instead
gives them the right “to be free from state interference with
their choice of the educational forum itself.” Id. at 1206–07
(emphasis added). Yet again, Plaintiffs’ papers objected
19 The dissent argues that Plaintiffs’ reply memorandum
affirmatively disavowed any reliance on the Meyer-Pierce right, because
that reply at one point disputed the State’s effort to characterize
Plaintiffs’ position as resting on a “fundamental right to in-person
school.” See Dissent at 71. The quoted comment, however, was directed
at the State’s argument that Rodriguez made clear that States have wide
discretion in deciding how to provide education, and it clarified that
Plaintiffs were not claiming that the Fourteenth Amendment prohibited
States from providing an adequate basic minimum education through
distance learning. That is not, as the dissent would have it, an abjuration
of the Meyer-Pierce right.

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40 BRACH V. N EWSOM
both to the State’s failure to provide an adequate education
(an argument that applied only to the public-school
Plaintiffs) and the State’s affirmative interference with the
provision of education (an argument that also applied to the
private-school Plaintiffs). The State’s suggestion that these
papers should instead be construed as having sub silentio
jettisoned the claims of the five private-school Plaintiffs is
untenable.
The State is therefore wrong in suggesting that the more
detailed Meyer-Pierce argument that is contained in
Plaintiffs’ appellate opening brief should have been
presented in that form in the district court and that, by not
doing so, Plaintiffs forfeited this entire point. As just
explained, the private-school Plaintiffs unquestionably
presented below the claim that the State’s closure of their
private schools violated their Fourteenth Amendment right
to choose the educational forum that would best provide an
adequate education for their children. Indeed, these
Plaintiffs cannot reasonably be construed as having
presented a claim about the provision of public-school
education. Having presented their private-school-closure
claim below, Plaintiffs “can make any argument in support
of that claim [on appeal]; parties are not limited to the precise
arguments they made below.” Yee v. City of Escondido, 503
U.S. 519, 534 (1992); see also United States v. Pallares-
Galan, 359 F.3d 1088, 1094–95 (9th Cir. 2004) (defendant
properly raised new argument on appeal to support his
underlying claim below). The State’s forfeiture contention
takes an unrealistically narrow view of the permissible scope
of appellate argument. “An argument is typically elaborated
more articulately, with more extensive authorities, on appeal
than in the less focused and frequently more time pressured
environment of the trial court, and there is nothing wrong
with that.” Puerta v. United States, 121 F.3d 1338, 1341–42

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BRACH V. N EWSOM 41
(9th Cir. 1997). That principle applies with special force
here, in which the district court conducted expedited
proceedings that resulted in a sua sponte grant of summary
judgment before the State even answered the complaint. Cf.
Arce v. Douglas, 793 F.3d 968, 976 (9th Cir. 2015)
(cautioning against the use of sua sponte summary judgment
at the preliminary injunction stage, when the merits might
not yet have been “fully ventilated”).
In all events, even if Plaintiffs’ Meyer-Pierce argument
were otherwise forfeited, this is a paradigmatic case for
exercising our discretion to consider arguments raised for the
first time on appeal. See El Paso City v. America West
Airlines, Inc. (In re America West Airlines, Inc.), 217 F.3d
1161, 1165 (9th Cir. 2000); see also AMA Multimedia, LLC
v. Wanat, 970 F.3d 1201, 1213–14 (9th Cir. 2020). Whether
summary judgment was properly granted against the private-
school Plaintiffs on the record before the district court raises
a question of law that we review de novo, and we therefore
have discretion to consider a new argument as to why that
court erred as a matter of law. See America West, 217 F.3d
at 1165. That the Meyer-Pierce issue in this case is a
straightforward question of law, together with the
importance of the issue, weighs in favor of considering the
arguments that have been squarely raised on appeal. See,
e.g., Countrywide Home Loans, Inc. v. Lehua Hoopai (In re
Hoopai), 581 F.3d 1090, 1096 (9th Cir. 2009). We would
thus exercise discretion to consider the private-school
Plaintiffs’ claims even if we had concluded that their claims
had been forfeited.
2
We therefore turn to the merits of the private-school
Plaintiffs’ contention that California’s prohibition on in-
person instruction violates their fundamental rights under the

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42 BRACH V. N EWSOM
Due Process Clause of the Fourteenth Amendment, as
recognized in Meyer-Pierce. We conclude that the district
court erred in dismissing the claims of these Plaintiffs on
summary judgment.
a
As we have previously observed, the Supreme Court has
long held that “the right of parents to make decisions
concerning the care, custody, and control of their children is
a fundamental liberty interest protected by the Due Process
Clause,” and that this right includes “the right of parents to
be free from state interference with their choice of the
educational forum itself.” Fields, 427 F.3d at 1204, 1207;
see also Troxel v. Granville, 530 U.S. 57, 65–66 (2000)
(plurality) (noting that the Court had repeatedly “recognized
the fundamental right of parents to make decisions
concerning the care, custody, and control of their children,”
including “the right ‘to direct the upbringing and education
of children under their control’” (quoting Pierce, 268 U.S. at
534–35)). Thus, even as the Court has “‘always been
reluctant to expand the concept of substantive due process,’”
it has repeatedly reaffirmed its recognition, in Meyer and
Pierce, of a “fundamental right[]” to “direct the education
and upbringing of one’s children.” Glucksberg, 521 U.S. at
720 (citation omitted); see also Troxel, 530 U.S. at 65
(plurality) (describing the Meyer-Pierce right as “perhaps
the oldest of the fundamental liberty interests recognized” by
the Court); id. at 80 (Thomas, J., concurring in judgment)
(agreeing that, under Pierce, “parents have a fundamental
constitutional right to rear their children, including the right
to determine who shall educate and socialize them”).
The State does not dispute that Meyer and Pierce
recognized a fundamental right of parents concerning the
education of their children. Nonetheless, noting that Pierce

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BRACH V. N EWSOM 43
invalidated an Oregon statute that forbade parents from
sending their minor children to any school other than a
public school, see Pierce, 268 U.S. at 530, California insists
that the right recognized in Pierce consists only of the “right
to decide where to send their children to school.” Because
California has not “prevent[ed] the Parents-Appellants from
enrolling their children in private schools,” the State argues,
it has not in any respect infringed the Meyer-Pierce right.
Rather, the State asserts that all it has done is to alter the
“mode of instruction” that must be followed at both public
and private schools, and it contends that Meyer and Pierce
do not limit its ability to adopt such universal rules. These
arguments fail.
The State’s narrow reading of the Meyer-Pierce right and
the State’s purported carve-out for generally applicable
regulations of all schools are both refuted by Meyer itself.
There, the Supreme Court confronted a generally applicable
Nebraska statute stating that “‘[n]o person, individually or
as a teacher, shall, in any private, denominational, parochial
or public school, teach any subject to any person in any
language other than the English language.’” 262 U.S. at 397
(emphasis added) (citation omitted). The only exception
under the statute was that foreign languages “‘may be taught
as languages,’” but only after the eighth grade. Id. (citation
omitted). The Nebraska statute thus had both features that
California says are enough to evade any constitutional
scrutiny: it did not interfere with the decision to enroll in a
private school, and it imposed a restriction that was generally
applicable to both private and public schools. Nonetheless,
the Supreme Court struck down the Nebraska statute,
concluding that it impermissibly “attempted materially to

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44 BRACH V. N EWSOM
interfere . . . with the power of parents to control the
education of their own.” Id. at 401.20
The State’s definition of the right is thus unquestionably
too narrow. But the Supreme Court has also cautioned
against an overbroad reading of the Meyer-Pierce right. See
Runyon v. McCrary, 427 U.S. 160, 177 (1976) (stating that
Pierce “lent ‘no support to the contention that parents may
replace state educational requirements with their own
idiosyncratic views of what knowledge a child needs to be a
productive and happy member of society’” (quoting
Wisconsin v. Yoder, 406 U.S. 205, 239 (1972) (White, J.,
concurring))); see also Norwood v. Harrison, 413 U.S. 455,
461 (1973) (emphasizing the “limited scope of Pierce”). In
discerning the contours of that right, and whether
California’s restrictions implicate it, we must be guided by
the Supreme Court’s insistence on a “‘careful description’ of
the asserted fundamental liberty interest,” Glucksberg,
521 U.S. at 721 (citation omitted), which ordinarily “must
be defined in a most circumscribed manner, with central
reference to specific historical practices,” Obergefell v.
Hodges, 576 U.S. 644, 671 (2015). Here, a consideration of
historical practice and tradition confirms that California has
20 For similar reasons, the dissent is wrong in relying on a strawman
argument that the private-school Plaintiffs supposedly are asserting a
fundamental right to be exempt from generally applicable regulations.
See Dissent at 78. They instead assert a fundamental right to choose in-
person private instruction, and the question is whether that right exists
and, if so, what standard of scrutiny applies to a regulation that wholly
deprives them of that right. Plaintiffs in this case have not challenged
any of the State’s many other Covid-related restrictions beyond the
prohibition on in-person instruction (such as health and safety protocols
within classrooms). And we are not presented here with a directive that
generally regulates schools in a manner that preserves the core of the
Meyer-Pierce right. See also infra note 23.

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BRACH V. N EWSOM 45
deprived the private-school Plaintiffs of a core aspect of the
Meyer-Pierce right.
As historically understood, the Meyer-Pierce right
necessarily embraced a right to choose in-person private-
school instruction, because—as the State conceded at oral
argument—such instruction was until recently the only
feasible means of providing education to children. Thus,
prior to the advent of the internet and associated technology,
it would never have been imagined that the Meyer-Pierce
right did not include the right to choose in-person private
instruction. We are aware of no authority, for example,
suggesting that Meyer-Pierce only protected the right of
parents to choose correspondence schools for their children.
The technological advances of recent years raise the
possibility that the Meyer-Pierce right might conceivably be
deemed to have expanded to cover the ability to choose such
additional modes of learning, just as the First Amendment
right to speak in letters and in newspapers extends to emails
and blogs.21 But the fact that instruction can now also occur
online provides no basis for concluding that the traditional,
long-understood core of the right—the right to choose a
private school offering in-person instruction—has now
somehow been removed from that right. That would make
no more sense than suggesting that the rise of the internet
means that the right to free speech and a free press no longer
includes the right to speak to a live audience or to publish in
a physical newspaper. Put simply, the fact that technology
now makes it possible to have a different type of learning
21 No such question is presented here, because the private-school
Plaintiffs all prefer in-person instruction. We therefore express no view
as to whether a State could insist, over a parent’s objection, that a child
not attend an online school.

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46 BRACH V. N EWSOM
does not mean that the right to choose long-established
traditional forms of education has disappeared.
Precedent further confirms the common-sense notion
that the Meyer-Pierce right includes the right to choose
traditional in-person instruction at a private school. In
Fields, we described the Meyer-Pierce right as “the right of
parents to be free from state interference with their choice of
the educational forum itself.” Fields, 427 F.3d at 1207. It is
hard to imagine a more direct interference with the “choice
of the educational forum itself” than a prohibition upon in-
person instruction in that chosen forum. And in Farrington
v. Tokushige, 11 F.2d 710 (9th Cir. 1926), we expressly
noted that the Meyer-Pierce right protected in-person
instruction in the course of addressing whether that right was
infringed by the Territory of Hawaii’s onerous regulation of
foreign-language schools. Id. at 713–14. In describing the
contours of that right, we quoted Justice Harlan’s dissenting
opinion in Berea College v. Kentucky, 211 U.S. 45 (1908),
which emphasized the physically congregative aspect of
private-school education:
If pupils, of whatever race—certainly, if they
be citizens— choose with the consent of their
parents or voluntarily to sit together in a
private institution of learning while receiving
instruction which is not in its nature harmful
or dangerous to the public, no government,
whether federal or state, can legally forbid

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BRACH V. N EWSOM 47
their coming together, or being together
temporarily[,] for such an innocent purpose.
Tokushige, 11 F.2d at 713–14 (emphasis added) (quoting
Berea College, 211 U.S. at 68 (Harlan, J., dissenting)).22 We
then concluded that, under Meyer, Hawaii’s burdensome
restrictions on private foreign-language schools
impermissibly interfered with “the right of a parent to
educate his own child in his own way,” and with the
students’ “right to be taught” in such schools. Id. at 714.
Tokushige thus confirms that, as traditionally understood,
the Meyer-Pierce right includes the right to select a private
school at which the students will “com[e] together,” “be[]
together temporarily,” and “sit together in a private
institution of learning while receiving instruction.” Id.
at 713–14.
Here, of course, the State insists that, due to the
pandemic, physical congregation of students can be
dangerous, but that point goes to the question of whether the
State’s restrictions are justified under the appropriate level
of scrutiny. It provides no basis for suggesting that the
underlying Meyer-Pierce right does not even include the
ability to choose in-person private-school instruction. It may
be that the current once-in-a-century conditions present
unique dangers that justify a limit on such in-person
instruction, but such contingent circumstances do not
establish that, for purposes of defining the Meyer-Pierce
22 Justice Harlan’s dissenting opinion in Berea College concluded
that Kentucky’s prohibition on interracial private schools violated “the
rights of liberty and property guaranteed by the Fourteenth
Amendment.” 211 U.S. at 67. His view that such a statute is
unconstitutional was, of course, vindicated by Brown v. Board of
Education, 347 U.S. 483 (1954), and its progeny.

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48 BRACH V. N EWSOM
right, physical congregation of students involves
“instruction which” is “in its nature harmful or dangerous to
the public” and is therefore altogether outside of that right.
Tokushige, 11 F.2d at 713–14 (emphasis added). The
traditional and long-established nature of in-person private
schooling refutes any such categorical suggestion.23
That the Meyer-Pierce right encompasses parents’
choice to send their children to in-person schools is further
confirmed by the reasoning in Pierce, Meyer, and their
progeny. In emphasizing the importance of parental control
over the educational forum for their children, Pierce
underscored the “right of parents to choose schools where
their children will receive appropriate mental and religious
training.” 268 U.S. at 532; see also Yoder, 406 U.S. at 211
(emphasizing the importance of parents’ ability to ensure
that their children are not “away from their community,
physically and emotionally, during the crucial and formative
adolescent period of life”). As the declarations in this case
amply illustrate, the private-school Plaintiffs here are all
strongly of the view that distance learning is inimical to the
“appropriate mental . . . training” that Plaintiffs want for
their children, Pierce, 268 U.S. at 532, and that it deprives
Plaintiffs’ children of the physical and emotional
connections they need during the formative years of their
childhood, see Yoder, 406 U.S. at 211. There can be no
serious question that the restrictions at issue here thus
23 Nor is there any other basis for concluding that the particular
choices the private-school Plaintiffs have made for their children are
otherwise categorically outside the Meyer-Pierce right. The State has
not suggested, for example, that the particular schools at issue here fail
to provide a substantive educational program meeting appropriate
standards of rigor and breadth. Yoder, 406 U.S. at 213 (noting that States
may “impose reasonable regulations for the control and duration of basic
education”).

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BRACH V. N EWSOM 49
“materially . . . interfere . . . with the power of parents to
control the education of their own.” Meyer, 262 U.S. at 401.
Accordingly, we conclude that the private-school
Plaintiffs have established that the State’s prohibition on in-
person instruction deprives them of a core right that is
constitutionally protected under Meyer and Pierce. The only
remaining question is whether that deprivation is adequately
justified under the appropriate level of scrutiny.
b
Meyer and Pierce were decided at a time in which the
Supreme Court had not yet articulated the various levels of
scrutiny that are familiar to us today. Moreover, the
Supreme Court has yet to definitively decide what standard
of review applies to infringements of the Meyer-Pierce right.
See, e.g., Doe v. Heck, 327 F.3d 492, 519 (7th Cir. 2003).
But the Court has repeatedly characterized the Meyer-Pierce
right as being “fundamental,” Glucksberg, 521 U.S. at 720;
see also Troxel, 530 U.S. at 65 (plurality); id. at 80 (Thomas,
J., concurring in judgment), and we have held that
“[g]overnmental actions that infringe upon a fundamental
right receive strict scrutiny,” Fields, 427 F.3d at 1208. At
least where, as here, the challenged restriction wholly
deprives the private-school Plaintiffs of a central and
longstanding aspect of the Meyer-Pierce right, see supra
at 45–46, the appropriate level of scrutiny therefore must be
strict scrutiny.24
24 As noted earlier, Plaintiffs have not purported to assert a right to
choose an educational forum that departs from traditional academic and
pedagogical standards, see supra note 23; we therefore express no view
as to whether the Meyer-Pierce right would protect such a choice, nor do

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50 BRACH V. N EWSOM
To satisfy strict scrutiny, California must show that its
infringement of the private-school Plaintiffs’ rights is
“narrowly tailored” to advance a “compelling” state interest.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 533 (1993). “Stemming the spread of
COVID-19 is unquestionably a compelling interest.”
Diocese of Brooklyn, 141 S. Ct. at 67. The only question,
therefore, is whether the State has shown that its broad
prohibition of in-person education satisfies the narrow-
tailoring requirement as a matter of law. It has not.
In Diocese of Brooklyn, the Supreme Court held that
attendance caps of 10 and 25 people at indoor religious
services in areas that were classified as having a high
prevalence of Covid were not narrowly tailored. 141 S. Ct.
at 67. As the Court explained, such caps were “more
restrictive than any COVID-related regulations” that the
Court had upheld; they were “much tighter than those
adopted by many other jurisdictions hard-hit by the
pandemic”; and they were “far more severe than has been
shown to be required to prevent the spread of the virus” at
the relevant facilities. Id. The same points are applicable
here. By prohibiting in-person instruction at the relevant
Plaintiffs’ schools, California effectively imposed an
attendance cap of zero, which is much more restrictive than
the numerical caps struck down by the Supreme Court for
religious services in Diocese of Brooklyn.25 That alone
we address what standard of review would govern state regulation of
educational quality.
25 The State points to its cohort guidance, suggesting that this
guidance would allow any school to operate so long as it organizes itself
into small cohorts of 14 children and 2 adults. But that contention is
contradicted by the CDPH’s own August 25, 2020 supplement to the
cohort guidance, which stated that the guidance did not “allow for in

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BRACH V. N EWSOM 51
confirms that California’s prohibition on in-person
instruction is not sufficiently tailored.
Moreover, Plaintiffs presented undisputed evidence that
California’s broad and lengthy closure of schools was more
severe than what many other jurisdictions have done,
thereby further negating any suggestion that California
adopted the least restrictive means of accomplishing its
compelling interest. 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.” 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.” The State’s expert did not identify any evidence
indicating that children in a school setting would present
person instruction for all students” and that the guidance only permitted
“[i]n-person targeted, specialized support and services,” such as
“occupational therapy services, speech and language services, and other
medical services, behavioral services, educational support services as
part of a targeted intervention strategy or assessments, such as those
related to English learner status, individualized educational programs
and other required assessments” (emphasis added).

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52 BRACH V. N EWSOM
greater risks of transmission than some of the other activities
that the State had authorized, such as operating grocery
stores, factories, daycare centers, and shopping malls. While
the district court concluded that the State’s response was
sufficient for rational-basis purposes, the same cannot be
said under strict scrutiny. On this record, the State’s
concerns about transmission would justify a potential range
of more narrowly drawn prophylactic measures within
schools to mitigate such risks; it cannot justify wholesale
closure. See Monclova Christian Acad. v. Toledo-Lucas
Cnty. Health Dep’t, 984 F.3d 477, 482 (6th Cir. 2020)
(holding that plaintiffs would likely succeed on the merits of
their First Amendment challenge to the closure of religious
schools because an Ohio county’s shutdown of every school
in the county, while allowing gyms, tanning salons, office
buildings, and a large casino to remain open, does not
survive strict scrutiny). And broad measures that fail to take
proper account of relevant differences between the school-
age population and others are, by definition, not narrowly
tailored.
As with its rigidly overbroad approach to religious
services, California once again failed to “explain why it
cannot address its legitimate concerns with rules short of a
total ban.” South Bay, 141 S. Ct. at 718 (Gorsuch, J.,
statement).26 We certainly cannot say that, as a matter of
law, California’s “drastic measure” of closing the private-
26 Five justices joined this section of Justice Gorsuch’s statement.
Justices Thomas and Alito joined it in full, and Justices Kavanaugh and
Barrett expressly “agree[d] with Justice Gorsuch’s statement” except for
a separate portion not cited here. See 141 S. Ct. at 717 (Barrett, J.,
concurring). The Court’s decision pointedly rejected this court’s
contrary reasoning and result in that case. South Bay United Pentecostal
Church v. Newsom, 985 F.3d 1128 (9th Cir. 2021).

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BRACH V. N EWSOM 53
school Plaintiffs’ schools for nearly a year survives strict
scrutiny. Diocese of Brooklyn, 141 S. Ct. at 68.
IV
Finally, we turn to the private-school and public-school
Plaintiffs’ claims under the Equal Protection Clause. As to
the private-school Plaintiffs, we vacate the district court’s
judgment rejecting their Equal Protection claims and remand
for further consideration in light of the conclusion that the
State’s actions implicate a fundamental right of those
Plaintiffs. We affirm, however, the district court’s rejection
of the public-school Plaintiffs’ claims under the Equal
Protection Clause.
The public-school Plaintiffs argue that the State’s
challenged orders “arbitrarily treat[] Plaintiffs’ children . . .
differently from those in nearby school districts; from those
in childcare; and from those attending summer camps, even
though all such children and their families are similarly
situated.” Classifications that do not implicate suspect
classifications or fundamental constitutional rights “must be
upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification.” FCC v. Beach
Commc’ns, Inc., 508 U.S. 307, 313 (1993). Because there is
no fundamental right to a state-provided basic minimum
public education, see supra at 31–36, the rational basis test
applies here except to the extent that the State’s orders could
be said to rest on an invidious distinction that would trigger
heightened scrutiny. No such distinction is present here.
Without more, classifications based on the prevalence of
Covid in a particular locality, such as a county, do not
implicate a suspect classification. Nor does a distinction
between public schools on the one hand and camps and
childcare centers on the other. Consequently, the public-

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school Plaintiffs’ equal protection claim must be analyzed
under the rational basis test.
The State’s classification based on whether a public
school is located in a locality with a high incidence of Covid
infection is plainly rationally related to the State’s legitimate
and compelling interest in preventing Covid-related disease
and death. And the State’s classification between public
schools and other facilities such as camps and childcare
centers permissibly and rationally chooses to address an
important problem in an “incremental” fashion. Angelotti
Chiropractic, Inc. v. Baker, 791 F.3d 1075, 1085–86 (9th
Cir. 2015); see also Beach Commc’ns, 508 U.S. at 316.
V
Because the State’s evidentiary showing was insufficient
to establish, as a matter of law, that its school-closure order
was narrowly tailored as applied to the five private-school
Plaintiffs,27 we reverse the district court’s grant of summary
judgment to the State on those Plaintiffs’ substantive due
process claim, and we remand for further proceedings.28 We
remand also for the district court to consider the private-
school Plaintiffs’ challenge under the Equal Protection
clause in light of our conclusion that the State’s actions
implicate a fundamental right of those Plaintiffs. We
27 The five private-school Plaintiffs are Roger Hackett, Alison
Walsh, Erica Sephton, Lacee Beaulieu, and Adebukola Onibokum. As
noted earlier, Beaulieu also has another child in public school. See supra
note 1. As to her claims involving that child, Beaulieu is a public-school
Plaintiff and her claims were properly rejected by the district court.
28 We have not been presented with any question concerning the
validity of any state-imposed protocols for operating a reopened school,
and we express no view on any such question.

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BRACH V. N EWSOM 55
otherwise affirm the district court’s grant of summary
judgment.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
HURWITZ, Circuit Judge, dissenting:
When Plaintiffs filed their operative amended complaint
on July 29, 2020, California was dealing with widespread
transmission of the deadly COVID-19 virus. The State had
devised a series of measures—including suspension of in-
person instruction at schools—to slow that transmission.
Plaintiffs sought declaratory relief and an injunction against
the orders restricting in-person instruction.
But things have changed since the complaint was filed.
The State has made substantial progress in battling the
pandemic, largely because of the introduction of effective
and widely available vaccines. Given that progress, the
challenged orders no longer prevent any of Plaintiffs’
schools from providing in-person instruction. Indeed, even
if case rates rise, no reopened school would be required to
close by the challenged orders, and the State has recently
issued guidelines for full in-person education for the coming
school year.
Despite this drastically changed legal landscape, the
majority refuses to recognize that the case before us is moot.
But the majority’s mootness analysis, while incorrect, does
little damage on its own. What is far more troubling is the
majority’s treatment of the private-school Plaintiffs’
constitutional claims. In finding that Plaintiffs have pleaded
a substantive due process violation, the majority relies on an

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56 BRACH V. N EWSOM
argument never raised below. And in addressing that
forfeited argument, the majority casts aside governing law,
reimagining the scope of Supreme Court precedent and
applying strict scrutiny to the challenged state health
directives.
I respectfully dissent.
I
The essential starting point in this case is the history and
substance of the State’s COVID-19 orders.
A
On March 4, 2020, Governor Gavin Newsom declared a
State of Emergency to address the emerging COVID-19
pandemic. COVID-19 is a highly contagious virus that
spreads from person to person mainly through respiratory
droplets produced when an infected person—even an
asymptomatic one—speaks, coughs, or sneezes. People
with COVID-19 have reported a wide range of symptoms,
with many suffering death or long-term health
complications. At the time of the Governor’s declaration,
there was no widely effective treatment for the virus and no
vaccine.
On March 19, 2020, Governor Newsom issued
Executive Order N-33-20, requiring California residents to
“immediately heed the current State public health
directives.” Cal. Exec. Order N-33-20 (Mar. 19, 2020); see
also Cal. Exec. Order N-60-20 (May 4, 2020). Among those
directives was one from the State Public Health Officer
ordering residents “to stay home or at their place of residence
except as needed to maintain continuity of operations of the
federal critical infrastructure sectors.” School workers were

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BRACH V. N EWSOM 57
allowed to leave home only to provide distance learning, and
schools were closed for in-person instruction.1
On July 17, 2020, the Department of Public Health
issued its “COVID-19 and Reopening In-Person Learning
Framework for K–12 Schools in California, 2020-2021
School Year” (the “Framework”). The Framework
explained that “closures to in-person instruction were part of
a broader set of recommendations intended to reduce”
COVID-19 transmission. It allowed schools to reopen if
located in a county that had “not been on the county
monitoring list within the prior 14 days.” A county was
placed on the monitoring list if (1) its 14-day COVID-19
case rate was over 100 per 100,000 people; or (2) both (i) its
14-day case rate was over 25 per 100,000 people and (ii) its
7-day testing positivity rate was over 8 percent. There were
two notable exceptions to the school-closure order:
(1) recognizing the lower risks to younger children,
elementary schools in listed counties could obtain waivers to
conduct in-person learning; and (2) affected schools were
allowed to provide in-person instruction in small cohorts,
pursuant to guidelines. Once reopened, a school was not
required to close even if its county returned to the monitoring
list.
On August 28, 2020, the State adopted a modified
framework for reopening across all sectors (the “Blueprint”).
The Blueprint noted that although “[c]ommunity spread of
infection remains a significant concern across the state,” the
State intended “to gradually reopen businesses and activities
while reducing the risk of increased community spread.”
1 The State planned to reopen schools by mid-summer 2020 but was
required to abandon that plan after a “significant increase in the spread
of COVID-19.”

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58 BRACH V. N EWSOM
The Blueprint provided “revised criteria for loosening and
tightening restrictions on activities” based on the prevalence
of COVID-19 in the relevant county and an activity’s
calculated risk level. The Blueprint assigned each county to
a tier, ranging from Tier 1 (“Widespread”) to Tier 4
(“Minimal”), reflecting the transmission risk of COVID-19
based on county caseloads and test positivity rates. A county
was assigned to Tier 1 if either (1) its 7-day case rate was
over 7 per 100,000 people or (2) its 7-day test positivity rate
was over 8 percent. Schools were allowed to reopen on
criteria equivalent to those in the Framework (with Tier 1
substituted for the county monitoring list). Reopened
schools were again not required to close even if their
counties returned to Tier 1.
B
On December 30, 2020, while this appeal was pending,
Governor Newsom announced the “Safe Schools for All”
plan. “Informed by growing evidence of the decreased risks
and increased benefits of in-person instruction,” especially
for younger students, the Plan intended to “create safe
learning environments for students and safe workplaces for
educators,” and to “ensure schools have the resources
necessary to successfully implement key safety precautions
and mitigation measures.” The proposal was substantively
like the State’s prior guidance; it prioritized returning young
children and those with special needs to schools, but
recognized ongoing risks associated with reopening and did
not lift the restrictions on in-person instruction.
On January 14, 2021, the Department issued a revised
“COVID-19 and Reopening In-Person Instruction
Framework” (the “Revised Framework”). It allowed
elementary schools in Tier 1 counties to open for in-person
classes if the county’s adjusted daily COVID-19 case rate

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BRACH V. N EWSOM 59
was under 25 cases per 100,000 people for five consecutive
days. The Revised Framework was later amended to allow
reopening for all grades K–12 on the same metric. Each
county where Plaintiffs’ children or the student-Plaintiff
attend school had exited Tier 1 by the second week of April
2021. So, there was “no longer any state-imposed barrier to
reopening for in-person instruction” applicable to any of the
Plaintiffs.
On June 11, 2021, the Governor formally revoked the
stay-at-home order (Executive Order N-33-20) and the order
directing residents to heed State public health directives on
which the Blueprint framework relied (Executive Order N-
60-20). See Cal. Exec. Order N-07-21 (June 11, 2021). The
Governor acknowledged that “the effective actions of
Californians over the past fifteen months have successfully
curbed the spread of COVID-19, resulting in dramatically
lower disease prevalence and death, in the State.” “[A]s of
June 9, 2021, 54.3% of eligible Californians have received a
full course of COVID-19 vaccination, raising the level of
overall immunity in the State.”2 The Governor’s order
preserved the State Public Health Officer’s authority to issue
COVID-19-related directives.
The State Public Health Officer soon thereafter issued an
order recognizing that California “is prepared to enter a new
phase” and has “made significant progress in vaccinating
individuals and reducing community transmission.” Cal.
State Public Health Officer Order of June 11, 2021. The
Officer recognized that “[t]he COVID-19 vaccines are
2 As of July 21, 2021, 61.5% of Californians were fully vaccinated,
and another 9.2% were partially vaccinated. Vaccination Progress Data,
CAL. FOR A LL , https://covid19.ca.gov/vaccination-progress-data/ (last
accessed July 7, 2021).

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60 BRACH V. N EWSOM
effective in preventing infection, disease, and spread.” The
Officer noted that the State “must remain vigilant against
variants of the disease especially given high levels of
transmission in other parts of the world and due to the
possibility of vaccine escape.” So, the Officer required that
all individuals continue to follow the “COVID-19 Public
Health Guidance for K–12 Schools in California,” which
allowed schools to reopen on criteria equivalent to the
Revised Framework, and again provided that reopened
schools need not close even if case rates rise.3
On July 12, 2021, the State Public Health Officer issued
its “COVID-19 Public Health Guidance for K–12 Schools in
California, 2021-22 School Year.” “The foundational
principle of this guidance is that all students must have
access to safe and full in-person instruction and to as much
instructional time as possible.” The guidance noted that, in
California:
[T]he surest path to safe and full in-person
instruction at the outset of the school year, as
well as minimizing missed school days in an
ongoing basis, is a strong emphasis on the
following: vaccination for all eligible
individuals to get COVID-19 rates down
throughout the community; universal
masking in schools, which enables no
minimum physical distancing, allowing all
students access to full in-person learning, and
more targeted quarantine practices, keeping
students in school; and access to a robust
3 The law allowing school districts to offer distance learning expired
on June 30, 2021. See Cal. Educ. Code § 43503(a).

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BRACH V. N EWSOM 61
COVID-19 testing program as an available
additional safety layer.
“This guidance is designed to enable all schools to offer and
provide full in-person instruction to all students . . . even if
pandemic dynamics shift throughout the school year,
affected by vaccination rates and the potential emergence of
viral variants.”
II
The majority’s first error is concluding that this case is
not moot.
A
“When an intervening circumstance at any point during
litigation eliminates the case or controversy required by
Article III, the action can no longer proceed and must be
dismissed as moot.” Pierce v. Ducey, 965 F.3d 1085, 1089
(9th Cir. 2020) (cleaned up); see also Doe v. Madison Sch.
Dist. No. 321, 177 F.3d 789, 797–98 (9th Cir. 1999) (noting
that an actual controversy must exist “at all stages of
review”). This occurs where a plaintiff “no longer has any
present interest affected by the [challenged] policy.”
Weinstein v. Bradford, 423 U.S. 147, 148–49 (1975).
That is precisely what occurred here. Plaintiffs seek only
declaratory and injunctive relief precluding the State from
preventing schools from providing in-person instruction.
But they concede that there is “no longer any state-imposed
barrier to reopening for in-person instruction” applicable to
the schools attended by Plaintiffs’ children or the student-
Plaintiff. Under the challenged orders, these schools can
fully reopen and need not close again even if case rates rise.
Indeed, Plaintiffs do not contest the State’s assertion that all

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62 BRACH V. N EWSOM
of the schools and districts identified by their papers “have
‘opened’ for in-person instruction.”
B
The majority does not dispute that no relevant school is
either under a closure order or can be placed in one under the
challenged orders. However, it holds that this case falls
within two familiar exceptions to the mootness doctrine:
(1) a defendant cannot moot an action through voluntary
cessation of the challenged activity, see Already, LLC v.
Nike, Inc., 568 U.S. 85, 91 (2013); and (2) the issues raised
are capable of repetition yet evading review, see Turner v.
Rogers, 564 U.S. 431, 439 (2011). Majority Opinion
(“Op.”) at 24. Neither conclusion withstands analysis.
1
It is basic that “[a] defendant’s voluntary cessation of
allegedly unlawful conduct ordinarily does not suffice to
moot a case.” Friends of the Earth, Inc. v. Laidlaw Env’t
Servs. (TOC), Inc., 528 U.S. 167, 174 (2000). But that
doctrine does not apply here. The State’s purportedly
unlawful conduct was enforcing a policy providing that
schools may reopen and not be required to reclose if certain
benchmarks are met. The State did not “cease[] that conduct
at all.” See Pierce, 965 F.3d at 1090. Rather, it consistently
adhered to that policy; the relevant schools just all met those
benchmarks. See id. In other words, the gamesmanship
concerns that animate the voluntary cessation doctrine are
not present in this case. See Already, LLC, 568 U.S. at 91;
see also Rosemere Neighborhood Ass’n v. U.S. Env’t Prot.
Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) (noting that the

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BRACH V. N EWSOM 63
doctrine applies where a party ceased “illegal activity in
response to pending litigation”).4
Even if the voluntary cessation doctrine facially applied,
the case would nonetheless still be moot if the State showed
it is “absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.” Rosebrock v.
Mathis, 745 F.3d 963, 971–72 (9th Cir. 2014) (cleaned up).
The issue is not whether the State conceivably could again
order schools to close. Rather, we must consider whether
the State has shown that it cannot “reasonably be expected”
to do so. Id. at 971 (emphasis added). The answer to that
question is “yes.”
My conclusion does not rest on the premise that COVID-
19 case rates will not again rise, perhaps even precipitously.
Indeed, given the virulence of new variants and the
continued reluctance of some to be vaccinated, a rise in case
rates is sadly a real possibility. But the issue before us is not
whether there will be a future public health crisis. The issue
is whether the conduct challenged here, a school-closure
order, is “reasonably” likely to be imposed on Plaintiffs’
schools in response to that potential crisis. And on that
point, the record is compelling.
The challenged orders pose absolutely no barrier to in-
person instruction at Plaintiffs’ schools. Plaintiffs’ counties
are no longer subject to the challenged orders for a simple
reason—case rates have dropped dramatically. And even if
4 The majority’s assertion that Diocese of Brooklyn “necessarily”
rejected this argument, Op. at 24–25, reads too much into the Court’s
silence. The Court did not specify which of the two doctrines addressed
by Plaintiffs applied and, in any event, focused its discussion largely on
the notion that, given the timing of religious services, a future dispute
might evade review. See 141 S. Ct. at 68–69.

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64 BRACH V. N EWSOM
case rates rise to a level that might have triggered closures
under earlier iterations of the State’s guidance, see Op. at 28,
this would not require a reopened school to close.
The essential premise of the majority opinion is therefore
that there is a reasonable chance that, sometime in the future,
the State will impose new and more severe restrictions than
those in the challenged orders. The State, however, has
disclaimed any such intention. Its actions are in accord with
its words. The State’s guidance for the coming school year
provides for reopening schools with full in-person
instruction. Moreover, the State had made clear that “even
if pandemic dynamics shift throughout the school year,” it
does not intend to rely on broad closures, but instead on more
targeted measures that would allow children to remain in
school. Id. The very “foundational principle” of its
guidance is to ensure in-person instruction. Id.
The majority rejects all this as a “coy assertion” because
the State has in the past changed its regulations and retains
the ultimate legal authority to modify its regulations. Op.
at 26. But if the bare authority to enact new and different
rules is alone enough to avoid mootness, no dispute against
a government could be moot. Cf., e.g., Trump v. Int’l
Refugee Assistance, 138 S. Ct. 353 (2017). Indeed, although
the State has changed certain aspects of the regulations, it
has not strayed from the principle that reopened schools need
not close again even if case rates rise. The majority fails to
accord this consistency, combined with the State’s
representations as to its plans for the coming school year, the
requisite deference. See Am. Cargo Transp., Inc. v. United
States, 625 F.3d 1176, 1180 (9th Cir. 2010) (collecting cases
holding that governments receive particular deference in this
analysis).

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BRACH V. N EWSOM 65
On the record before us, the State has plainly met its
burden of demonstrating that the challenged conduct—
closure of the Plaintiffs’ schools—is not reasonably likely to
recur. And a suit challenging the current plan, or some
hypothetical future plan requiring vaccination or masking
rather than school closures, would pose very different issues
than those the majority gratuitously undertakes to decide.
See Texas v. United States, 523 U.S. 296, 300 (1998) (“A
claim is not ripe for adjudication if it rests upon contingent
future events that may not occur as anticipated, or indeed
may not occur at all.”) (cleaned up).
2
Disputes are “capable of repetition, yet evading review”
if “(1) the challenged action was in its duration too short to
be fully litigated prior to its cessation or expiration, and
(2) there was a reasonable expectation that the same
complaining party would be subjected to the same action
again.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (cleaned
up). As with voluntary cessation, for this doctrine to apply,
there must be a “reasonable expectation or a demonstrated
probability,” not just a theoretical possibility, that the same
controversy will recur. Id. (cleaned up).
I agree with the majority that Plaintiffs here moved with
dispatch but were nonetheless unable to secure final
appellate review before mootness occurred. See Alaska Ctr.
for Env’t v. U.S. Forest Serv., 189 F.3d 851, 855–56 (9th Cir.
1999). But, for the reasons explained above, I part ways with
the conclusion that it is reasonable to expect this issue will
recur. The State has consistently provided that once schools
reopen—as all of the relevant schools can—they need not
close again even if case rates rise. And given the presence
of vaccines, their demonstrated utility in reducing the spread
of COVID-19, and the State’s guidance for the coming

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66 BRACH V. N EWSOM
school year, I cannot conclude that its response in the event
new restrictions are necessary will be to impose even more
severe restrictions than the challenged orders.
3
Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) (per curiam), upon which the majority
relies, does not compel a contrary conclusion. To be sure,
the facts of that case have some superficial similarity to this
one. Religious institutions challenged New York’s system
of COVID-19 restrictions, which used a multi-tiered “zone”
system to impose capacity limits for religious services. Id.
at 65–66. Although the zones containing the plaintiff
institutions had been reclassified and no longer imposed the
challenged restrictions, the Court—citing but not discussing
cases that involve both the voluntary cessation and “capable
of repetition” doctrines—declined to find the dispute moot.
Id. at 68.
But Diocese of Brooklyn is critically different than this
case. When the Court heard the case, the religious
institutions “remain[ed] under a constant threat that the area
in question will be reclassified.” Id. Indeed, New York
“regularly” changed the classification of particular areas
without prior notice, with eight recent changes within a
period of little over a month. Id. Given the frequency of
changes and the brief time available to seek relief before
religious services in a given week, the Court found “no
reason why [the plaintiffs] should bear the risk of suffering
further irreparable harm in the event of another
reclassification.” Id. at 68–69.
California’s relatively steady and infrequent changes to
its reopening plans are a far cry from the New York
regulations that changed several times a week. And there is

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BRACH V. N EWSOM 67
no risk of “irreparable harm”—Plaintiffs’ schools can
reopen (and, to the extent the schools are identified, have
already done so) and need not close even if case rates rise
again. Plaintiffs, in short, simply do not remain under a
“constant threat” that the challenged restrictions will be
reimposed. In contrast to this case, New York did not
dispute that the plaintiffs faced irreparable harm and it was
“likely” the relevant zones would be reclassified. See id. at
74 (Kavanaugh, J., concurring). Here, under the orders
challenged by Plaintiffs, there is no chance that the schools
at issue will be prevented from opening to in-person
instruction.
III
The majority’s mootness analysis, although in my view
incorrect, does little damage on its own. What makes its
opinion truly problematic is the conclusion that the
challenged orders violate the substantive Due Process
Clause as applied to parents of children who attend private
schools under the “Meyer-Pierce” doctrine. See Meyer v.
Nebraska, 262 U.S. 390 (1923); Pierce v. Soc’y of Sisters,
268 U.S. 510 (1925). In arriving at that conclusion, the
majority routinely sets aside governing precedent, beginning
with the basic principle that “an appellate court will not
consider issues not properly raised before the district court.”
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
A
The majority’s forfeiture analysis begins with an
incorrect premise: that whether Plaintiffs actually raised
their claim below “must be understood against the backdrop
of the relevant caselaw.” Op. at 37. We of course consider
relevant caselaw when analyzing the merits of a claim. But
whether a claim was properly raised before the district court

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68 BRACH V. N EWSOM
is a record-based inquiry that turns on what Plaintiffs
actually said, not what they might have said. The record
makes plain that plaintiffs raised no Meyer-Pierce argument
below.
I begin with a review of Plaintiffs’ carefully drafted
complaint. The complaint does not “generally allege[]” the
denial of Due Process rights. Op. at 37. Rather, it explicitly
and repeatedly asserts a violation of but one purported Due
Process right—a right to a basic minimum education:
• “Plaintiffs and their children have a fundamental
right to a basic, minimum education. Defendants
have deprived Plaintiffs and their children of this
right in violation of the Fourteenth Amendment to
the U.S. Constitution, by effectively precluding
children from receiving a basic minimum
education[.]” (emphasis added).
• “Defendants lack any compelling, or even rational,
interest for burdening Plaintiffs’ children of their
fundamental right to a basic minimum education.”
(emphasis added).
• “In Defendants’ rush to enact these new restrictions,
they have placed special interests ahead of the
wellbeing of the children, and children’s
fundamental right to receive a basic minimum
education.” (emphasis added).
• “[T]he Court should not hesitate to ensure that
Plaintiffs’ fundamental rights in securing a basic
minimum education for their children are preserved
and protected from Defendants’ arbitrary actions.”
(emphasis added).

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BRACH V. N EWSOM 69
The complaint nowhere differentiates between public- and
private-school children with respect to the Due Process
claim, nor does it assert that California has abridged or
interfered with the right of parents to select their children’s
educational forum.
Plaintiffs’ district court briefing is no different. Their
briefs allege a single due process violation predicated on a
claimed right to a basic minimum education. In claiming
that their briefing raised a Meyer-Pierce claim, Plaintiffs
identify only a citation to Meyer in a portion of a brief
arguing for the right to a basic minimum education. A
review of the full context of that citation demonstrates that it
did not raise a separate Meyer-Pierce claim:
A. The Order Violates the Fourteenth
Amendment Because it Infringes
Fundamental Rights and Is Not Narrowly
Tailored to Advance the Government’s
Interest in Combatting the Spread of
COVID-19
Education is a Fundamental Right.
State-provided education is “deeply rooted in
this Nation’s history and tradition” and is
“implicit in the concept of ordered liberty.”
Washington v. Glucksberg, 521 U.S. 702,
720–21 (1997). Any infringement of the
right to basic minimum education—or
discrimination that deprives certain groups of
that right—is thus subject to a “heightened
level of scrutiny.” United States v. Harding,
971 F.2d 410, 412. n.1 (9th Cir. 1992).
And while Defendants contend that “no
court has recognized a fundamental right to a

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70 BRACH V. N EWSOM
basic education” (Resp. 14), Plyer and
Rodriguez demonstrate that any infringement
on the right to basic minimum education must
be met with at least heightened scrutiny.
Plyer v. Doe, 457 U.S. 202, 221 (1982); San
Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1, 36–37 (1973). Moreover, the
“identification and protection of fundamental
rights is an enduring part of the judicial duty
to interpret the Constitution.” Obergefell v.
Hodges, 135 S. Ct. 2584, 2598 (2016).
In all events, education is at least a
“quasi-fundamental right” under settled
precedent. Harding, 971 F.2d at 412 n.1.
Courts have long held that pupils have a
“right to be taught,” Farrington v. Tokushige,
11 F.2d 710, 714 (9th Cir. 1926), aff’d, 273
U.S. 284 (1927), and that parents have a
right “to control the education of their”
children. Meyer v. Nebraska, 262 U.S. 390,
401 (1923). The very concept of “liberty,”
“[w]ithout doubt, [ ] denotes . . . the right of
the individual . . . to acquire useful
knowledge.” Id. at 399. Any burden on the
right to education thus raises heightened
scrutiny. See Carmen Green, Educational
Empowerment: A Child’s Right to Attend
Public School, 103 Geo. L. J. 1089, 1127–28
(the test utilized in Meyer is “most similar to
today’s intermediate standard of review”).
(second emphasis added). Not convinced? Take Plaintiffs’
word for it:

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BRACH V. N EWSOM 71
Defendants mischaracterize Plaintiffs as
advocating for a “fundamental right to in-
person school.” Resp. 17. Plaintiffs’ actual
argument is that “the Fourteenth Amendment
of the United States Constitution [ ] protects
Californians’ fundamental right to a basic
minimum education,” TRO at 2, and that the
Order infringes that right because distance
learning has proved woefully inadequate.
See id. 7–9.
Indeed, despite the district court’s invitation for
supplemental filings when it was considering whether to
grant summary judgment, Plaintiffs did not present any
distinct argument that a Meyer-Pierce right was being
asserted, again merely citing these cases in passing. When
the court granted summary judgment without mentioning a
Meyer-Pierce claim, Plaintiffs did not request
reconsideration. See Young v. Hawaii, 992 F.3d 765, 779–
80 (9th Cir. 2021) (en banc). And Plaintiffs candidly
conceded at oral argument that they cannot and do not fault
the district court for not addressing that claim.
However charitably read, Plaintiffs’ filings below simply
did not offer the argument that the school closure orders
infringed the parents’ substantive Due Process right to
control their children’s upbringing. The only argument
raised by Plaintiffs’ quite able counsel was that all
children—those attending public and private schools alike—
were being denied a right to a basic minimum education.
Unhappy with the record, the majority creatively
reimagines Plaintiffs’ district court filings, concluding that
because some of the children had opted out of a state-
provided education, they “necessarily” raised a Meyer-

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Pierce claim. Op. at 37–41. That is neither logically nor
actually the case. The complaint and briefing assert only that
the State was preventing Plaintiffs’ children—both those
who attended public school and those who did not—from
receiving a constitutionally sufficient level of education.
The private-school Plaintiffs would plainly have benefited
from succeeding on that claim: the COVID-19 restrictions
would have been lifted in the schools in which their children
were enrolled. The fact that Plaintiffs asserted a broad losing
argument below doesn’t mean that they implicitly preserved
a different one.
B
Perhaps recognizing that the Meyer-Pierce argument
was never raised below, the majority alternatively concludes
that we should exercise our discretion to hear it. But,
although we can forgive forfeiture under certain
circumstances, see AMA Multimedia, LLC v. Wanat,
970 F.3d 1201, 1213–14 (9th Cir. 2020), there is a
fundamental reason not to do so here. The “cardinal
principle of judicial restraint” is that “if it is not necessary to
decide more, it is necessary not to decide more.” PDK Labs.,
Inc. v. Drug Enf’t Admin., 362 F.3d 786, 799 (D.C. Cir.
2004) (Roberts, J., concurring in part and in the judgment).
That principle applies in force here.
We might exercise our discretion to reach this forfeited
issue if it would impact Plaintiffs’ ability to attend school
today or tomorrow. But it will not. Their schools can reopen
and need not close again even if case rates rise. I might also
understand the need to forgive forfeiture if this were a
recurring question. But it is not. The restrictions here were
the product of exceptional circumstances, and, largely for the
reasons detailed above, are unlikely to recur. The majority’s
ruling is therefore tantamount to an advisory opinion. And

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BRACH V. N EWSOM 73
because the issue decided is one of constitutional
importance, we should leave it for another day.
IV
Having ignored all stop signs, the majority speeds on to
the merits of the Meyer-Pierce claims. That is its biggest
mistake. The majority errs in both (1) finding that the
narrow Meyer-Pierce right protects a parent’s choice of a
particular mode of education and (2) concluding that any law
impacting the Meyer-Pierce right is subject to strict scrutiny.
A
Because the majority’s analysis of the Meyer-Pierce
claims rests largely on out-of-context quotations from
Supreme Court decisions, it is useful to begin with a review
of what the relevant cases actually hold.
Meyer involved a teacher’s challenge to his conviction
under state law for unlawfully teaching German to children
at a parochial school. 262 U.S. at 396–97. In reversing that
conviction, the Court explained that the Fourteenth
Amendment “liberty” interest included parents’ rights to
“bring up children,” including “the right of parents to engage
[Meyer] so to instruct their children.” Id. at 400. The Court,
however, stressed that “[t]he power of the state to compel
attendance at some school and to make reasonable
regulations for all schools . . . is not questioned.” Id. at 402.
Pierce considered a challenge by an Oregon corporation
that operated private schools to a law requiring attendance
of all students at public schools. 268 U.S. at 531–32. The
Court reiterated that “[n]o question is raised concerning the
power of the state reasonably to regulate all schools” or “to
inspect, supervise and examine them, their teachers and

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74 BRACH V. N EWSOM
pupils.” Id. at 534. But the Court found that the Oregon law
“unreasonably interferes with the liberty of parents and
guardians to direct the upbringing and education of children
under their control.” Id. at 534–35. Because children are
not “merely” creatures of the state, “[t]he fundamental
theory of liberty upon which all governments in this Union
repose excludes any general power of the state to standardize
its children by forcing them to accept instruction from public
teachers only.” Id. at 535.
Wisconsin v. Yoder considered a challenge by three
Amish parents to convictions for refusing to send their
children to public school in violation of state law. 406 U.S.
205, 207–09 (1972). Although affirming the Wisconsin
Supreme Court’s reversal of the convictions, the Court once
again emphasized that “[t]here is no doubt as to the power of
a State, having a high responsibility for education of its
citizens, to impose reasonable regulations for the control and
duration of basic education.” Id. at 213.
Runyon v. McCrary considered whether 42 U.S.C.
§ 1981 was constitutional as applied to schools with a history
of discriminatory admissions. 427 U.S. 160, 168–69 (1976).
In answering the question “yes,” the Court rejected the
notion that the Meyer-Pierce right was implicated, reading
those cases and their progeny narrowly:
[T]he present application of § 1981 infringes
no parental right recognized in Meyer,
Pierce, Yoder, or Norwood. No challenge is
made to the petitioner schools’ right to
operate or the right of parents to send their
children to a particular private school rather
than a public school. Nor do these cases
involve a challenge to the subject matter
which is taught at any private school. Thus,

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BRACH V. N EWSOM 75
the [schools] remain presumptively free to
inculcate whatever values and standards they
deem desirable. Meyer and its progeny
entitle them to no more.
Id. at 177. The Court later reiterated this narrow reading and
again emphasized that the right does not prevent states from
reasonably regulating schools:
The Court has repeatedly stressed that while
parents have a constitutional right to send
their children to private schools and a
constitutional right to select private schools
that offer specialized instruction, they have
no constitutional right to provide their
children with private school education
unfettered by reasonable government
regulation. Indeed, the Court in Pierce
expressly acknowledged “the power of the
State reasonably to regulate all schools, to
inspect, supervise and examine them, their
teachers and pupils . . . .”
Id. at 178.
Fields v. Palmdale School District, 427 F.3d 1197 (9th
Cir. 2005), re-affirms these well-established principles. The
plaintiffs sued a school district for teaching sexual topics,
asserting their right to control their children’s upbringing.
Id. at 1204–05. We recognized the Meyer-Pierce right to
direct one’s child’s upbringing but emphasized that it is “not
without limitations.” Id. at 1204. We affirmed the holdings,
repeated in each of the above cases, that the State may
subject this right to “reasonable regulation.” See id. Indeed,
we further held that “once parents make the choice as to

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which school their children will attend, their fundamental
right to control the education of their children is, at the least,
substantially diminished.” Id. at 1206. In short, we stressed
that “what Meyer-Pierce establishes is the right of parents to
be free from state interference with their choice of the
educational forum itself, a choice that ordinarily determines
the type of education one’s child will receive.” Id. at 1207.
B
The majority nonetheless reads the Meyer-Pierce right
as protecting a parent’s right to choose a specific mode of
education. But, as one of our colleagues has aptly noted,
Meyer and Pierce were products of “complex forces.” Jay
S. Bybee, Substantive Due Process and Free Exercise of
Religion: Meyer, Pierce and the Origins of Wisconsin v.
Yoder, 25 CAP . U. L. REV. 887, 891 (1996). The Supreme
Court has instructed us to read those decisions narrowly,
explaining that Meyer protects a parent’s right to choose a
child’s curriculum, and that Pierce protects a parent’s right
to choose a school for the child. Runyon, 427 U.S. at 176–
77; see also Norwood v. Harrison, 413 U.S. 455, 461 (1973)
(stressing “the limited scope of Pierce”); see also, e.g., Ohio
Ass’n of Indep. Sch. v. Goff, 92 F.3d 419 (6th Cir. 1996)
(“The Supreme Court has held that parents have a
constitutional right to send their children to private schools
and a constitutional right to select private schools that offer
specialized instruction.”). Neither right is at stake here:
Plaintiffs freely chose the private school of their choice and
do not complain about state interference in the substance of
what those schools teach.

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BRACH V. N EWSOM 77
The majority justifies its expansion of the Meyer-Pierce
right by claiming that it must “necessarily” have included a
right to select in-person education. See Op. at 45. But the
Supreme Court has told us the contours of the right, and they
do not encompass a given mode of instruction. Their
reliance on isolated language in prior decisions fares no
better. To be sure, in Fields, we explained that the Meyer-
Pierce right protects the “choice of the educational forum.”
Op. at 46 (quoting Fields, 427 F.3d at 1207). But that
statement simply reaffirmed the principle that parents were
free to choose the school their children will attend, and did
not even indirectly suggest that the mode of delivery of
instruction was a matter of constitutional magnitude. The
same applies to our prior quoting of Justice Harlan’s dissent
in Berea College v. Kentucky, 211 U.S. 45 (1908), in
Farrington v. Tokushige, 11 F.2d 710 (9th Cir. 1926), for the
following proposition:
If pupils, of whatever race . . . choose with
the consent of their parents or voluntarily to
sit together in a private institution of learning
while receiving instruction which is not in its
nature harmful or dangerous to the public, no
government, whether federal or state, can
legally forbid their coming together, or being
together temporarily for such an innocent
purpose.
See Op. at 46–47 (quoting Tokushige, 11 F.2d at 713–14).
The decision plainly involves the decision to operate a
private school, not whether that school is then subject to
generally applicable non-discriminatory health regulations.

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In rejecting the public-school Plaintiffs’ claims, the
majority ironically notes the Supreme Court’s admonition
that we “exercise the utmost care whenever we are asked to
break new ground” in the field of substantive due process,
see Glucksberg, 521 U.S. at 720 (cleaned up), and its narrow
reading of its own cases on which the plaintiffs relied, see
Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 459 (1988),
to support the conclusion that “we have no license to
recognize such a novel right here,” Op. at 34. But it then
goes on to recognize precisely such a novel right.
C
Even assuming the Meyer-Pierce right protects in some
fashion a parent’s right to select in-person education during
a pandemic, the majority errs in concluding that all laws
impacting that interest must survive strict scrutiny. The
Supreme Court has repeatedly emphasized that the Meyer-
Pierce right remains subject to “reasonable” state regulation.
Meyer, 262 U.S. at 403; Pierce, 268 U.S. at 534–35; Yoder,
406 U.S. at 215; Runyon, 427 U.S. at 178. We have said the
same. Fields, 427 F.3d at 1204–05; Hooks v. Clark Cnty.
Sch. Dist., 228 F.3d 1036, 1042 (9th Cir. 2000). Applying
strict scrutiny whenever a Meyer-Pierce interest is at stake
vitiates this controlling precedent. If every regulation
touching on a Meyer-Pierce interest must survive that
heightened review, a host of “reasonable” regulations would
not survive, as there might be a less drastic means of
achieving the state’s purpose.
In finding that strict scrutiny applies, the majority again
elevates isolated language of opinions over their actual
holdings. That the Supreme Court has described the right as
“fundamental” does not allow us to disregard its repeated
injunctions that the right remains subject to “reasonable
regulation.” Indeed, even when presented with an

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BRACH V. N EWSOM 79
opportunity to broadly apply strict scrutiny to laws
infringing the Meyer-Pierce right, only one justice indicated
that he would do so. See Troxel v. Granville, 530 U.S. 57,
80 (2000) (Thomas, J., concurring); see also, e.g., Ohio
Ass’n, 92 F.3d at 423 (“[N]o federal court has similarly
suggested that wholly secular limitations on private school
education implicate a fundamental right warranting strict
scrutiny.”).
The correct question to ask in reviewing the challenged
orders is simply whether they are “reasonable.” That they
are is a point the majority does not—and cannot—dispute;
indeed, it implicitly accepts that conclusion in rejecting the
claims of the public-school Plaintiffs. See Op. at 53. We
must be particularly deferential in the context of the COVID-
19 pandemic, as we “are not public health experts and . . .
should respect the judgment of those with special expertise”
in this area. Diocese of Brooklyn, 141 S. Ct. at 68 (2020).
California imposed the challenged orders to protect its
citizens from a pandemic. Relying on established scientific
consensus about how the virus spreads, California
temporarily restricted in-person schooling alongside a host
of other activities. These restrictions have now largely been
lifted as the threat of the pandemic has waned. The
challenged orders can thus hardly be said to be unreasonable,
and, as a result, should be upheld.

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V
I respectfully but emphatically dissent.5
5 Although I would not reach the claims of the public-school
Plaintiffs, I agree with the majority that they fail on the merits. But here,
too, the majority overreaches. It is not necessary to resolve this case to
hold that there is no right to a minimum level of education, an issue the
Supreme Court has left open. See Op. at 31–34; San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 37 (1973); Papasan v. Allain, 478 U.S.
265, 285 (1986) (noting that as “Rodriguez and Plyler indicate, this Court
has not yet definitively settled . . . whether a minimally adequate
education is a fundamental right”). Rather, it is enough to conclude that
the district court correctly granted summary judgment to the State
Defendants because any supposed right to a minimum level of education
had not been denied simply because instruction was temporarily being
provided remotely.

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