Petition for Writ of Certiorari — Matthew Brach, et al., Petitioners v. Gavin Newsom, Governor of California, et al.

Supreme Court briefSep 13, 2022

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No. 22In the

Supreme Court of the United States

MATTHEW BRACH; JESSE PETRILLA; LACEE

BEAULIEU ERICA SEPHTON; KENNETH FLEMING;

JOHN ZIEGLER; ALISON WALSH; ROGER HACKETT;

CHRISTINE RUIZ; Z.R.; MARIANNA BEMA; ASHLEY

RAMIREZ; TIFFANY MITROWKE; ADE ONIBOKUN;

AND BRIAN HAWKINS,

Petitioners,

GAVIN NEWSOM, IN HIS OFFICIAL CAPACITY AS

THE GOVERNOR OF CALIFORNIA; ROB BONTA,

IN HIS OFFICIAL CAPACITY AS THE ATTORNEY

GENERAL OF CALIFORNIA; TOMAS J. ARAGON, IN

HIS OFFICIAL CAPACITY AS THE STATE PUBLIC

HEALTH OFFICER AND DEPARTMENT OF PUBLIC

HEALTH DIRECTOR; AND TONY THURMOND,

IN HIS OFFICIAL CAPACITY AS CALIFORNIA

SUPERINTENDENT OF PUBLIC INSTRUCTION

AND DIRECTOR OF EDUCATION,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Mark Trammell

Josh Dixon

Eric Sell

Center for A merican Liberty

1311 South Main Street,

Suite 302

Mount Airy, MD 21771

Harmeet Dhillon

Counsel of Record

Mark P. Meuser

Dhillon Law Group, Inc.

177 Post Street, Suite 700

San Francisco, CA 94108

(415) 433-1700

harmeet@dhillonlaw.com

Counsel for Petitioners

315511

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

Like most states, California has empowered its

governor with emergency authority that enables imposition

of a swift and wide-reaching response to threats against

public health. Throughout the COVID-19 pandemic,

California Governor Gavin Newsom wielded—and continues

to wield—these emergency powers extensively. He took

actions unprecedented in modern times, including imposing

“stay-at-home” restrictions and ordering the closure of

schools, churches, public beaches, and many businesses.

Citizens in California and across the country have

brought scores of legal challenges to state governors’

exercise of their emergency powers. But resolution of

these lawsuits has been inconsistent, depending on where

in the country they were filed.

Specifically, the Circuits are split as to when challenges

to such restrictive measures become moot under Article

III’s case or controversy requirement. Two Circuits have

held that a challenge to emergency executive action does

not become moot—even if the challenged restrictions have

been repealed—so long as the declaration of emergency

remains in effect. By contrast, the Ninth Circuit held

here that a case is moot once the governor rescinds the

challenged restrictions, even though the emergency

declaration remains in effect and the governor could

reimpose the restrictions at any time.

The question presented is:

Is a case moot under Article III’s case or controversy

requirement when the governor rescinds the offending

policy after it is challenged in court, but the declaration

of emergency remains in place and the governor retains

the authority to reinstate the policy?

THE PARTIES

Petitioners are Matthew Brach, Jesse Petrilla, Lacee

Beaulieu, Erica Sephton, Kenneth Fleming, John Ziegler,

Alison Walsh, Roger Hackett, Christine Ruiz, Z.R.,

Marianna Bema, Ashley Ramirez, Tiffany Mitrowke, Ade

Onibokun, and Brian Hawkins. Petitioners are fourteen

parents and one student who were affected by executive

action that shut down a majority of schools in California

during the course of the COVID-19 pandemic.

Respondents are Gavin Newsom in his official capacity

as Governor of California; Xavier Becerra in his official

capacity as Attorney General of California, who was

initially a defendant in the district court, but was later

replaced by his successor, Rob Bonta; Sonia Angell in her

official capacity as the State Public Health Officer and

Department of Public Health Director, who was initially

a defendant in the district court, but was later replaced

by her successor, Tomas J. Aragon; and Tony Thurmond,

in his official capacity as the California Superintendent of

Public Instruction and Director of Education.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to this Court’s Rule 29.6, Petitioners state

as follows: All the Petitioners are individuals.

STATEMENT OF RELATED CASES

The proceedings identified below are directly related

to the above-captioned case in this Court.

Brach v. Newsom, No. 2:20-cv-6472, U.S. District

Court for the Central District of California. Judgment

entered on Dec. 1, 2020.

Brach v. Newsom, No. 20-56291, U.S. Court of Appeals

for the Ninth Circuit. Judgment entered on July 23, 2021.

Brach v. Newsom, No. 20-56291, U.S. Court of

Appeals for the Ninth Circuit, sitting en banc. Judgment

entered on June 15, 2022.

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . . iii

STATEMENT OF RELATED CASES . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

Governor Newsom’s Shutdown of California

Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Table of Contents

Page

A. The Governor’s Emergency Power . . . . . . . 3

B. Governor Newsom’s Ad Hoc School

Closure Requirements . . . . . . . . . . . . . . . . . . 4

C. Petitioners’ Suit and the State’s Changing

Requirements . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. The Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . 7

A. District Court Ruling . . . . . . . . . . . . . . . . . . 7

B. Ninth Circuit Three-Judge Panel Opinion . . 8

C. Ninth Circuit En Banc Opinion . . . . . . . . . . 9

REASONS FOR GRANTING THE PETITION . . . . 10

The Decision Below Created a Circuit Split . . . 10

II. The Decision Below Incorrectly Applied

the Mootness Doctrine . . . . . . . . . . . . . . . . . . . . 14

A. Petitioners’ Claims are not Moot . . . . . . . . 14

B. The Ninth Circuit Also Erroneously

Found Newsom’s Orders Expired by

Their Own Terms . . . . . . . . . . . . . . . . . . . . . 16

III. Petitioners’ Claims are Viable on Remand . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED JUNE 15, 2022 . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED JULY 23, 2021 . . . . . 70a

APPENDIX C — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA,

FILED DECEMBER 1, 2020 . . . . . . . . . . . . . . . . 155a

APPENDIX D — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA,

FILED AUGUST 21, 2020 . . . . . . . . . . . . . . . . . . . 191a

A P P E N DI X E — R E L E VA N T

CONSTITUTIONAL AND STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218a

APPENDIX F — EXECUTIVE ORDER OF

THE STATE OF CALIFORNIA . . . . . . . . . . . . . 231a

APPENDIX G — STATE OF CALIFORNIA

SCHOOL GUIDANCE . . . . . . . . . . . . . . . . . . . . . . 238a

A PPENDI X H — COV ID -19 INDUSTRY

GUIDANCE: SCHOOLS AND SCHOOLSBASED PROGRAMS . . . . . . . . . . . . . . . . . . . . . . . 246a

viii

Table of Appendices

Page

A PPENDI X I — COV ID -19 INDUSTRY

GUIDANCE: SCHOOLS AND SCHOOLBASED PROGRAMS . . . . . . . . . . . . . . . . . . . . . . . 277a

A PPENDI X J — GOV ERNOR NEWSOM

UNVEILS CALIFORNIA’S SAFE SCHOOLS

FOR ALL PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . 310a

A PPENDI X K — SA FE SCHOOL PLA N

SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318a

A PPENDI X L — SA FE SCHOOL PLA N

RATIONALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322a

APPENDIX M — EVIDENCE SUMMARY:

T K- 6 S CHO OLS A N D C OV I D -19

TRANSMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . 326a

APPENDIX N — COVID-19 AND REOPENING

IN-PERSON INSTRUCTION FRAMEWORK

& PUBLIC HEALTH GUIDANCE . . . . . . . . . . . 334a

TABLE OF CITED AUTHORITIES

Page

CASES

Ashcroft v. Iqbal,

556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Bayley’s Campground, Inc. v. Mills,

985 F.3d 153 (1st Cir. 2021) . . . . . . . . . . . . . . 11, 12, 13

Bos. Bit Labs, Inc. v. Baker,

11 F.4th 3 (1st Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . . 13

Calm Ventures LLC v. Newsom,

2021 WL 5049105 (C.D. Cal. 2021) . . . . . . . . . . . . . . . 5

Church of Scientology of Ca. v. United States,

506 U.S. 9 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

County of Butler v. Governor of Pa.,

8 F.4th 226 (3d Cir. 2021),

cert. denied, 142 S. Ct. 772 . . . . . . . . . . . . . . 13, 16, 17

Elim Romanian Pentecostal Church v. Pritzker,

962 F.3d 341 (7th Cir. 2020),

cert denied 141 S. Ct. 1753 (2021) . . . . . . . . 11, 12, 13

Federal Election Com’n v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Cited Authorities

Page

Friends of the Earth, Inc. v.

Laidlaw Envtl Services (TOC), Inc.,

528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Gateway City Church v. Newsom,

141 S. Ct. 1460 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Gish v. Newsom,

141 S. Ct. 1290 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Givens v. Newsom,

459 F. Supp. 3d 1302 (E.D. Cal. 2020) . . . . . . . . . . . . . 5

Harvest Rock Church, Inc. v. Newsom,

141 S. Ct. 1289 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Honing v. Doe,

484 U.S. 305 (1988) . . . . . . . . . . . . . . . . . . . . . . . . 10, 16

Jacobson v. Massachusetts,

197 U.S. 11 (1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Johnson v. City of Shelby, Miss.,

574 U.S. 10 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Kingdomware Technologies, Inc. v.

United States,

579 U.S. 162 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Leatherman v. Tarrant Cty. Narcotics

Intelligence and Coordination Unit,

507 U.S. 163 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Cited Authorities

Page

Lewis v. Continental Bank Corp.,

494 U.S. 472 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Lighthouse Fellowship Church v. Northam,

20 F.4th 157 (4th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 13

Meyer v. Nebraska,

262 U.S. 390 (1923) . . . . . . . . . . . . . . . . . . . 9, 10, 18, 19

Muldoon v. Newsom,

2020 WL 5092911 (C.D. Cal. 2020) . . . . . . . . . . . . . . . 5

Murphy v. Hunt,

455 U.S. 478 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Pierce v. Society of the Sisters of the Holy Names

of Jesus & Mary,

268 U.S. 510 (1925) . . . . . . . . . . . . . . . . . . . . . . 9, 17, 19

Prof’l Beauty Fed’n of Ca. v. Newsom,

2020 WL 3056126 (C.D. Cal. 2020) . . . . . . . . . . . . . . . 5

Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) . . . . . . . . . . . . . . . . . . . 8, 11, 13, 15

South Bay United Pentecostal Church v.

Newsom,

141 S. Ct. 716 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Spell v. Edwards,

962 F.3d 175 (5th Cir. 2020) . . . . . . . . . . . . . . 13, 16, 17

xii

Cited Authorities

Page

Spencer v. Kemna,

523 U.S. 1 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Swierkiewicz v. Sorema N.A.,

534 U.S. 506 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Tandon v. Newsom,

141 S. Ct. 1294 (2021) . . . . . . . . . . . . . . . . . . 5, 8, 15, 17

United States v. W.T. Grant Co.,

345 U.S. 629 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Yee v. City of Escondido, Cal.,

503 U.S. 519 (1992) . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

STATUTES AND OTHER AUTHORITIES:

U.S. Const., Amend. XIV . . . . . . . . . . . . . . . . . . . . 1, 7, 19

U.S. Const., art. III . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

U.S. Const., art. III, § 2 . . . . . . . . . . . . . . . . . . . . . . . . 1, 10

5 Wright & A. Miller, Federal Practice and

Procedure § 1219 (3d ed. 2004) . . . . . . . . . . . . . . . . . . 19

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Cal. Gov’t Code § 8567 . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17

xiii

Cited Authorities

Page

Cal. Gov’t Code § 8571 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Cal. Gov’t Code § 8625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Cal. Gov’t Code § 8629 . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17

Cal. Gov’t Code § 8658 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Executive Order N-60-20 . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fed. R. Civ Pro. 8(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorari

to review the en banc judgment of the United States Court

of Appeals for the Ninth Circuit.

OPINIONS BELOW

The Ninth Circuit en banc opinion is reported at

38 F.4th 6 and reproduced at App. A-1a to A-69a. The

order granting rehearing en banc and vacating the panel

opinion is reported at 18 F.4th 1031. The Ninth Circuit

panel opinion is reported at 6 F.4th 904 and reproduced at

App. B-70a to B-154a. The district court’s order granting

sua sponte summary judgment is reported at 2020 WL

7222103 and reproduced at App. C-155a to C-190a. The

district court’s denial of a temporary restraining order

is reported at 2020 WL 6036764 and reproduced at App.

D-191a to D-217a.

JURISDICTION

The Ninth Circuit issued its en banc opinion on June

15, 2022. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article III, Section 2 of the United States Constitution

and the Fourteenth Amendment to the United States

Constitution are reproduced at App. E-218a to E-230a;

the relevant portions of the California Government Code

are reproduced at App. E-218a to E-230a; the relevant

Executive Order by Governor Gavin Newsom is reproduced

at App. F-231a to F-237a; and the relevant guidance

documents executed by the California Department of

Public Health are reproduced at App. G-238a to N-424a.

INTRODUCTION

Throughout the COVID-19 pandemic, state governors

across the country took unprecedented action in response

to the virus. They issued mandatory quarantine orders

and “stay-at-home” requirements. They shut down

businesses, beaches, parks, and churches. And perhaps

most damaging, they barred schoolhouse doors and

prevented tens of millions of children across the country

from receiving an in-person education. These school

closures were pursued under the auspices of public health

and accomplished using the emergency powers granted

to the governors by state law. The Constitution often took

the back seat.

California’s Governor, Gavin Newsom, was one of the

early adopters of public-health restrictions. He issued a

declaration of emergency on March 4, 2020, and he has yet

to rescind that order. Exercising his emergency powers,

Governor Newsom imposed some of the most far-reaching

restrictions in the country, including closing schools across

California for over a year.

Petitioners include parents of school-age children

in California who challenged Governor Newsom’s

school-closure policy because they wanted to send their

children to private school in person. Petitioners sought

only declaratory relief. Schools in California have since

reopened to in-person learning, but the State has made

clear that the COVID-19 pandemic has not ended. Governor

Newsom has not rescinded his declaration of emergency,

and the State maintains that it may re-institute the school

closures at any point it deems necessary.

Over a vigorous dissent, the Ninth Circuit, sitting

en banc, held that Petitioners’ challenge to the schoolclosure policy is moot because the State has, for now,

resumed allowing in-person learning. The Ninth Circuit’s

decision conflicts with decisions by the First and Seventh

Circuits, which have both concluded that challenges to an

executive’s emergency restrictions are not moot when the

declaration of emergency remains in effect. This Circuit

split will sow confusion if allowed to stand. The Court

should take this opportunity to resolve the dispute.

STATEMENT OF THE CASE

Governor Newsom’s Shutdown of California

Schools

The Governor’s Emergency Power

Like many states, California gives its governor the

authority to proclaim a state of emergency under certain

specified conditions. Cal. Gov’t Code § 8625; see also Cal.

Gov’t Code § 8658. Under this emergency power, the

“Governor may make, amend, and rescind orders and

regulations necessary to carry out the provisions of the

[California Emergency Services Act].” Cal. Gov’t Code

§ 8567. The governor may also “suspend any regulatory

statute, or statute prescribing the procedure for conduct

of state business, or the orders, rules, or regulations of any

state agency” where the governor determines that doing

so will mitigate the emergency. Cal. Gov’t Code § 8571.

California law also dictates that the “Governor shall

proclaim the termination of the state of emergency at the

earliest possible date that conditions warrant.” Cal. Gov’t

Code § 8629.

Governor Newsom declared a state of emergency

in response to the COVID-19 pandemic on March 4,

2020, over two and a half years ago. App.75a. The state

of emergency remains in effect. App.25a (Paez, J.,

dissenting).

B. Governor Newsom’s Ad Hoc School Closure

Requirements

Shortly after declaring a state of emergency in March

2020, Governor Newsom issued multiple Executive Orders

that required the people of California “to obey State public

health directives.” App.231a. See also App.75a; ECF 36,

p. 16. As a result, the California Department of Public

Health began issuing guidance documents that had full

force of law. The State Public Health Officer published the

Essential Critical Infrastructure Workers list, which shut

down entire industries in California, including all schools

in the State, public and private, to in-person learning.

App.76a; ECF 36, p. 22.

On May 4, 2020, Governor Newsom issued Executive

Order N-60-20. In that Order, Governor Newsom ordered

that “[a]ll residents are directed to continue to obey State

public health directives, as made available at https://

covid19.ca.gov/stay-home-except-for-essential-needs/ and

elsewhere as the State Public Health Officer may provide”

App.233a. That website became the de facto clearinghouse

for California law during the pandemic.

By executive order, Governor Newsom created a new

form of government whereby State bureaucrats issued

guidance documents restricting citizens’ liberty, posted

the documents on a website, and enforced the restrictions

upon citizens across the State. See South Bay United

Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021);

Harvest Rock Church, Inc. v. Newsom, 141 S. Ct. 1289

(2021); Gish v. Newsom, 141 S. Ct. 1290 (2021); Gateway

City Church v. Newsom, 141 S. Ct. 1460 (2021); Tandon v.

Newsom, 141 S. Ct. 1294 (2021). Through these guidance

documents, Governor Newsom shut down businesses

(ECF 36, p. 22); shut down beaches, Muldoon v. Newsom,

2020 WL 5092911 *1 (C.D. Cal. 2020); restricted religious

worship, Gish, 141 S. Ct. 1290; and forbade demonstrations

on the State capitol grounds, Givens v. Newsom, 459

F.Supp.3d 1302, 1308 (E.D. Cal. 2020).

Over the spring and summer of 2020, a pattern

developed whereby Governor Newsom would hold a press

conference regarding new restrictions that were being

imposed, the State would issue guidance documents

depriving Californians of their liberties, and citizens

would challenge those restrictions in court. Within days,

the State would publish new guidance documents that

modified the challenged restrictions and then rush into

Court and argue that the cases were moot. See, e.g.,

Muldoon, 2020 WL 5092911; Prof’l Beauty Fed’n of Ca.

v. Newsom, 2020 WL 3056126 (C.D. Cal. 2020); Calm

Ventures LLC v. Newsom, 2021 WL 5049105 (C.D. Cal.

2021).

Any hope that the ban on in-person learning would

be short-lived vanished on July 17, 2020, when Governor

Newsom announced a framework to “reopen” schools. See

App.192a. The Governor did not issue any official executive

order on the topic. Instead, the State Public Health Officer

issued guidance documents providing that school districts

were allowed to reopen for in-person instruction only “if

they are located in a local health jurisdiction . . . that has

not been on the county monitoring list within the prior 14

days.” ECF 9, ¶ 29–30.

Under these guidance documents, students in thirtyseven of California’s fifty-eight counties were prohibited

from attending in-person classroom instruction. ECF

9, ¶ 34. The classrooms that were closed to in-person

instruction remained open for day camps and childcare

facilities, App.204a, but children across the State were

shut out of schools for the very purpose they exist—for

students to learn.

Petitioners’ Suit and the State’s Changing

Requirements

On July 21, 2020, four days after Governor Newsom

announced the school “reopening” framework, Petitioners—

fourteen California parents and one student—filed their

complaint challenging the school-closure directive.

App.193a; ECF 9. As relevant here, Petitioners sought

a declaration that the directive violated parents’ right

to send their children to in-person private school under

the Due Process and Equal Protection Clauses of the

Fourteenth Amendment. On August 3, 2020, Petitioners

filed an application for a temporary restraining order.

App.193a. That same day, the State Public Health Officer

again modified the guidance regarding school reopening.

App.277a.

On August 21, 2020, Judge Wilson—relying upon

Jacobson v. Massachusetts, 197 U.S. 11 (1905)—denied

Petitioner’s application for a temporary restraining order.

App.195a. A few days later, on August 25, 2020, the State

yet again published new guidance documents. ECF 63,

p. 5; ECF 54-3, p. 36.

While State officials were shutting down California

schools, depriving children of their academic, social,

and emotional development, both the U.S. Department

of Education and Centers for Disease Control were

encouraging schools to remain open. ECF 9, ¶ 37–47.

Indeed, Dr. Anthony Fauci recommended schools reopen

as early as June 3, 2020. See ECF 28-5, ¶ 9. The science

overwhelmingly indicated that children are at minimal

risk from COVID-19. ECF 9, ¶ 52–79; ECF 28-3, ¶ 21–30;

ECF 28-4, ¶ 15–16; ECF 28-5, ¶ 4–7; ECF 28-8, ¶ 5–7;

ECF 42-1, ¶ 4–5.

II. The Opinions Below

District Court Ruling

On September 1, 2020, two weeks after denying

Petitioners’ motion for a Temporary Restraining Order,

Judge Wilson sua sponte scheduled a hearing for summary

judgment. App.158a. On December 1, 2020, Judge Wilson

issued a Sua Sponte Order granting Summary Judgment

against Petitioners. App.156a.

As relevant here, Judge Wilson determined that the

case was not moot because several Petitioners lived in

school districts that were still shut down at the time of his

ruling. App.170a–71a. But he dismissed the case because

he concluded that Petitioners had not established a claim

under either the Due Process or Equal Protection Clauses

of the Fourteenth Amendment. App.172a–81a.

B. Ninth Circuit Three-Judge Panel Opinion

Petitioners appealed Judge Wilson’s Summary

Judgment Order to the Ninth Circuit. ECF 67. On

December 30, 2020, after Petitioners filed their notice of

appeal, Governor Newsom and the State Department of

Public Health issued the Safe School Plan. App.310a.

On January 14, 2021, State officials again modified

the guidance to schools on reopening. App.334a.

During the month of March 2021—while Petitioners’

appeal was pending before the Ninth Circuit—all counties

in California reached the point where schools were

permitted to offer in-person education under the thenapplicable guidance documents. App.88a. The three-judge

panel requested supplemental briefing on mootness before

issuing its opinion. App.88a.

Hewing closely to this Court’s decision in Roman

Catholic Diocese of Brooklyn v. Cuomo, the Ninth Circuit

panel majority determined that the case was not moot.

App.91a. (citing 141 S. Ct. 63 (2020) (per curiam)). The

majority recognized Governor Newsom’s “track record

of ‘moving the goalposts,” App.93a (quoting Tandon,

141 S. Ct. at 1297), and determined that the “voluntary

cessation” and “capable of repetition but evading review”

doctrines applied, App.91a.1

1. For ease of reference, Petitioners will refer to the latter

of these doctrines as the “capable of repetition” doctrine.

On the merits, as relevant here, the panel majority

determined that the State’s school-closure policy violated

the substantive due process rights of parents who wanted

to send their children to in-person private schools under

the Meyer-Pierce doctrine. App.106a. (citing Meyer v.

Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of

the Sisters of the Holy Names of Jesus & Mary, 268 U.S.

510 (1925)). The panel majority thus reversed the district

court’s entry of summary judgment on Petitioners’ due

process claim and remanded to the district court to

consider Petitioners’ equal protection claim in light of the

panel’s due process holding. App.109a.

Ninth Circuit En Banc Opinion

The Ninth Circuit granted rehearing en banc, and,

on June 15, 2022, the en banc court ruled that the case

was moot, holding that neither the voluntary-cessation

doctrine nor the capable-of-repetition doctrine applied.

App.20a. In reaching this conclusion, the court relied

heavily on a seven-page memo that the State originally

published on the California Department of Public Health

webpage on July 12, 2021, approximately a year after

Petitioners filed suit. App.10a. The en banc court observed

that the “State did not rescind its school closure orders in

response to the litigation.” App.13a. (cleaned up). Instead,

“the orders expired by their own terms after COVID-19

transmission rates declined and stabilized.” Ibid.

In dissent, Judge Paez, joined by Judges Berzon,

Ikuta, Nelson, and Bress, concluded that the case was

not moot because “Governor Newsom operated—and

continues to operate—under [the] emergency order.”

App.25a. Judge Paez would have held that both the

voluntary-cessation doctrine and capable-of-repetition

doctrine applied. App.28a, n.9. On the merits, Judge Paez

concluded that Petitioners had failed to plead a MeyerPierce claim. App.29a–35a.

REASONS FOR GRANTING THE PETITION

The Decision Below Created a Circuit Split

The Ninth Circuit’s decision below created a Circuit

split. Outside the Ninth Circuit, Circuit Courts have

generally held that a challenge to a governor’s emergency

powers is not moot when the governor has not relinquished

those powers. The Ninth Circuit concluded the opposite.

Consequently, the Circuits now have different mootness

holdings.

Under Article III, Section 2 of the United States

Constitution, federal courts may only adjudicate “actual,

ongoing controversies.” Honing v. Doe, 484 U.S. 305, 317

(1988). If events outrun the controversy such that the

court can grant no meaningful relief, the case is moot.

See, e.g., Church of Scientology of Ca. v. United States, 506

U.S. 9, 12 (1992). The burden of demonstrating mootness,

however, “is a heavy one.” United States v. W.T. Grant Co.,

345 U.S. 629, 633 (1953).

There are two relevant exceptions to the mootness

doctrine: voluntary cessation and capability of repetition.

Friends of the Earth, Inc. v. Laidlaw Envtl Services (TOC),

Inc., 528 U.S. 167, 189 (2000); Kingdomware Technologies,

Inc. v. United States, 579 U.S. 162, 170 (2016). Under the

voluntary-cessation doctrine, “a defendant claiming that

its voluntary [change in behavior] moots a case bears the

formidable burden of showing that it is absolutely clear

the allegedly wrongful behavior could not reasonably be

expected to recur.” Laidlaw, 528 U.S. at 190. The capableof-repetition doctrine applies when: “(1) the challenged

action [is] in its duration too short to be fully litigated prior

to cessation or expiration, and (2) there [is] a reasonable

expectation that the same complaining party will be

subject to the same action.” Spencer v. Kemna, 523 U.S.

1, 17 (1998) (quoting Lewis v. Continental Bank Corp.,

494 U.S. 472, 481 (1990)).

The First and Seventh Circuits have held cases were

not moot where governors retained their emergency

powers and could reinstate the offending restrictions.

Bayley’s Campground, Inc. v. Mills, 985 F.3d 153, 157–58

(1st Cir. 2021); Elim Romanian Pentecostal Church

v. Pritzker, 962 F.3d 341, 344–45 (7th Cir. 2020), cert

denied, 141 S. Ct. 1753 (2021). This is consistent with this

Court’s emergency-docket decision in Diocese of Brooklyn,

where the Court held that a case was not moot where the

governor regularly changed classifications subjecting

religious organizations to group-size restrictions. 141 S.

Ct. at 68.

In Bayley’s, the First Circuit considered a challenge

to a COVID-19 emergency order issued by the governor

of Maine. 985 F.3d at 155. Like this case, the governor of

Maine rescinded the offending order after the plaintiffs

filed their complaint. Ibid. at 156–57. The state argued

that the plaintiffs’ claims were moot, but the First Circuit

disagreed, holding that the state failed to show “that it

is absolutely clear the allegedly wrongful behavior could

not reasonably be expected to recur.” Ibid. at 158 (quoting

Laidlaw, 528 U.S. at 190). The First Circuit observed that

the executive action was one “the Governor voluntarily

rescinded and could unilaterally reimpose.” Ibid. at 157.

The First Circuit observed that concluding the case

was moot “would run the risk of effectively insulating

from judicial review an allegedly overly broad executive

emergency response, so long as it is iteratively imposed

for only relatively brief periods of time.” Ibid. at 158.

Similarly, the Seventh Circuit in Elim Romanian

also held a governor’s voluntary recission of a COVID-19

order did not moot a challenge to the order because the

governor retained the authority to reimpose the offending

restrictions. 962 F.3d at 344–45. There, the governor

of Illinois imposed restrictions on in-person religious

services. Ibid. at 343. The plaintiffs challenged the order

as violative of their constitutional rights. Ibid. Before

the case was heard on appeal, the governor of Illinois

rescinded the offending order. Ibid. The state argued

this mooted the plaintiffs’ claims, but the Seventh Circuit

disagreed, holding that “it is not ‘absolutely clear’ that the

terms of the [Executive Order] will never be restored.”

Ibid at 345.

The Ninth Circuit’s decision here is contrary to the

First and Seventh Circuit’s application of the mootness

doctrine. The Ninth Circuit concluded that the case was

moot because “there [was] no reasonable expectation the

challenged conduct will recur.” App.19a. But the governors

of Maine and Illinois also rescinded the challenged

orders, and the First and Seventh Circuits concluded that

repeal itself was not enough to moot the case because

the emergency declaration remained in effect and the

governor was free to reimpose the challenged restrictions.

Bayley’s, 985 F.3d at 157–58; Elim Romanian, 962 F.3d

at 344–45. The same is true here. Governor Newsom has

not rescinded his declaration of emergency and could

reimpose the restrictions on in-person learning at any

time. See App.25a (Paez, J., dissenting).

In this case, where Governor Newsom has not

relinquished his emergency powers, the Ninth Circuit

should have followed the courts in Bayley’s and Elim

Romanian and concluded this case was not moot. Instead,

the Ninth Circuit mistakenly analogized this case to those

where the governor relinquished their emergency power.

See App.20a. 2

This split among the Circuits highlights ongoing

uncer tainty over a core function of A r ticle III.

Governors across the country have been willing to

exercise extraordinary emergency power to address

the extraordinary circumstances presented by the

coronavirus pandemic. The consequences of such actions

are severe and wide reaching, affecting almost all aspects

of everyday life. But we do not “cut[] the Constitution

loose during a pandemic.” Diocese of Brooklyn, 141 S.

Ct. at 70 (Gorsuch, J., concurring). If states are allowed

to sidestep judicial review of their actions through the

simple expedient of modifying their practices while a

2. The First, Third, Fourth and Fifth Circuits have held cases

not capable of repetition where the governor had relinquished their

emergency powers. See Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 7

(1st Cir. 2021); County of Butler v. Governor of Pa., 8 F.4th 226,

230 (3rd Cir. 2021), Lighthouse Fellowship Church v. Northam, 20

F.4th 157, 159, 163–64 (4th Cir. 2021); Spell v. Edwards, 962 F.3d

175, 179 (5th Cir. 2020). But in this case, where the governor has

not relinquished his emergency powers, the Ninth Circuit should

have followed the courts in Bayley’s and Elim Romanian and held

this case was not moot.

state of emergency is still in effect, there is a threat that

the Constitution becomes meaningless. This split in the

Circuits on such an important aspect of Article III means

part of the country has access to constitutional protections

during an emergency while another part does not. The

Court should take this opportunity to resolve this dispute

and clarify when challenges to emergency actions become

moot.

II. The Decision Below Incorrectly Applied the

Mootness Doctrine

The Court should grant this Petition because the

Ninth Circuit erred in its application of the mootness

doctrine. If allowed to stand, the Ninth Circuit’s confused

application of a core aspect of Article III could serve as a

blueprint for government actors to avoid judicial review

of their actions.

Petitioners’ Claims are not Moot

The Ninth Circuit determined this case was moot

because “there is no reasonable expectation the challenged

conduct will recur.” App.19a. This determination was

erroneous.

First, the Ninth Circuit’s ruling places too much faith

in government actors’ assurances that they will not violate

the law in a time of emergency. Throughout this litigation,

the State has vigorously defended its ability to shut down

in-person classroom instruction via guidance documents.

See, e.g., App.203a. That has not changed. And despite

the State’s promises that it will not again close schools

to in-person instruction, the State can resume its school-

closure policy under the existing emergency order at the

mere flick of a pen. Until Governor Newsom rescinds

the declaration of emergency, the pandemic still exists

in California, and State officers can issue new guidance

documents imposing the old restrictions at any time. For

this reason, Petitioners “‘remain under a constant threat’

that government officials will use their power to reinstate

the challenged restrictions.” Tandon, 141 S. Ct. at 1297

(quoting Diocese of Brooklyn, 141 S. Ct. at 68).

Second, the Ninth Circuit’s ruling frustrates this

Court’s standard for claims that fall within an exception

to mootness. As noted, voluntary cessation requires the

government to show it is absolutely clear the allegedly

wrongful behavior could not resonably be expected to

recur. And this Court has explained that the second

prong of the capable-of-repetition doctrine requires only

a “reasonable expectation or a demonstrated probability

that the same controversy will recur involving the same

complaining party.” Federal Election Com’n v. Wis. Right

to Life, Inc., 551 U.S. 449, 463 (2007) (internal citations

omitted) (quoting Murphy v. Hunt, 455 U.S. 478, 482

(1982) (per curium)). The same controversy is sufficiently

likely to recur when a party has a reasonable expectation

that it “will again be subjected to the alleged illegality.”

City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)

(citation omitted).

As Judge Paez persuasively pointed out in his dissent,

the majority misinterpreted these standards to be too

demanding. See App.21a. Judge Paez noted that whether

an offending action is reasonably likely to recur “is not

an exacting bar,” and that this Court “has indicated that

it is somewhat less than probable.” App.21a–22a (quoting

Honig, 484 U.S. at 318). Judge Paez would have found the

school-closure policy was not moot “so long as Governor

Newsom retains the specific power to impose similar

restrictions.” App.27a. That conclusion was correct, and

that is exactly where things still stand now.

B. The Ninth Circuit Also Erroneously Found

Newsom’s Orders Expired by Their Own Terms

The Ninth Circuit also erred by misapprehending what

triggered the repeal of the school-closure orders at issue.

Specifically, the Ninth Circuit believed that the challenged

orders “expired by their own terms,” See App.13a, and,

based on this fact, it concluded the voluntary-cessation

doctrine was not implicated, App.13a. (quoting County of

Butler v. Governor of Pa., 8 F.4th 226, 230 (3rd Cir. 2021),

cert. denied, 142 S. Ct. 772; Spell v. Edwards, 962 F.3d

175, 178–79 (5th Cir. 2020)). This conclusion has no bearing

on the Ninth Circuit’s misapplication of the capable-ofrepetition doctrine, but it fails even on its own terms.

In Butler, an amendment to the Pennsylvania

Constitution was enacted that restricted the Governor’s

authority to enter the same orders. 8 F.4th at 230. In Spell,

the governor issued a stay-at-home order on April 2, 2020,

and extended the order again on April 30, 2020. 962 F.3d

at 177–178. On May 14, 2020, the day before the stay-athome order was slated to expire, the governor announced

that he would not be extending the stay-at-home order and

allowed the order to expire. Ibid.

Here, Governor Newsom repeatedly modified the

school-closure orders during the course of this litigation.

App.26a (noting that Governor Newsom has used his

emergency powers “to both loosen and tighten restrictions

since this lawsuit began”) (Paez, J., dissenting). Thus, it

is simply wrong to conclude, as the Ninth Circuit did, that

the relevant orders “expired by their own terms.” App.13a.

Moreover, un l i ke Butl er, there has been no

constitutional amendment here limiting the governor’s

emergency power, nor has the California Emergency

Services Act been amended or repealed since Governor

Newsom issued his emergency declaration in March 2020.

And unlike Spell, the emergency order there had a set

expiration date, something we do not have in this case.

Governor Newsom’s declaration of emergency does not

contain an expiration date and, by law, the only way that

order could cease would be by entry of another executive

order. Cal. Gov’t. Code §§ 8567, 8629.

Unlike other governors, Governor Newsom has never

relinquished his emergency powers. If he continues to

maintain them, there can be no voluntary cessation, and

the offending orders will be capable of repetition. This

is especially true considering that Governor Newsom

has a habit of “moving the goalposts.” Tandon, 141

S.Ct. at 1297 (cleaned up). The guidance documents that

constantly changed throughout this case are not analogous

to a constitutional amendment to remove emergency

power (Butler) or executive orders that contain built-in

expiration dates (Spell). Governor Newsom’s emergency

declaration is still in effect and officers of the State can

upload a new guidance document to the State website at

any time. The threat to Petitioners remains real, despite

the Ninth Circuit’s failure to recognize it.

III. Petitioners’ Claims are Viable on Remand

The Court should grant this Petition because

Petitioners’ Meyer-Pierce and equal protection claims

are viable on remand. While Judge Paez, in his dissenting

opinion below, would have concluded the case is not moot,

he would have affirmed the district court’s grant of

summary judgment against Petitioners. App.29a. Judge

Paez believed that Petitioners “failed to plead” the claim

that the school-closure orders violated their right to send

their children to private school in person. App.32a. This

conclusion was incorrect.

This Court routinely admonishes that the Federal

Rules “do not countenance dismissal of a complaint

for imperfect statement of the legal theory supporting

the claim asserted.” Johnson v. City of Shelby, Miss.,

574 U.S. 10, 11 (2014) (per curium) (holding that the

complaint need not even cite the statute that gives rise

to the claim); Swierkiewicz v. Sorema N.A., 534 U.S.

506, 513–15 (2002) (holding that courts cannot create a

heightened pleading standard beyond what the Federal

Rules require); Leatherman v. Tarrant Cty. Narcotics

Intelligence and Coordination Unit, 507 U.S. 163, 168

(1993) (same). Instead, the Rules require only “a short and

plain statement of the claim showing that the pleader is

entitled to relief.” Johnson, 574 U.S. at 11 (quoting Fed. R.

Civ. Pro. (8)(a)(2)). When considering this “short and plain

statement,” this Court has emphasized the distinction

between separate claims and separate arguments

supporting a claim. See Yee v. City of Escondido, Cal.,

503 U.S. 519, 534 (1992). Of course, the plaintiff must

plead sufficient factual allegations that, taken as true,

demonstrate a plausible entitlement to relief. See Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). But once a plaintiff

does so, the plaintiff “can make any argument in support

of that claim” later in the case. Yee, 503 U.S. at 534–35;

see also Johnson, 574 U.S. at 12 (quoting 5 Wright & A.

Miller, Federal Practice and Procedure § 1219, (3d ed.

2004) (“The federal rules effectively abolish the restrictive

theory of the pleadings doctrine, making it clear that it

is unnecessary to set out a legal theory for the plaintiff’s

claim for relief.”).

As the three-judge panel majority below correctly

concluded, Petitioners both raised and preserved their

Meyer-Pierce claim. App.105a. The en banc majority did

not address this issue, and the en banc dissent confused it.

Specifically, the en banc dissent concluded that Petitioners

did not plead a Meyer-Pierce claim. See App.32a (Paez,

J. dissenting).

The complaint contradicts this conclusion. Petitioners

include parents of both public and private school children.

See Brach v. Newsom, No. 20-6472, ECF No. 9 ¶ 7–21. The

first cause of action they alleged was for deprivation of

fundamental rights protected by the Due Process Clause

of the Fourteenth Amendment. Ibid. Petitioners asserted

this claim on behalf of their children and themselves. Ibid.

¶ 110. Indeed, the complaint included twenty pages of

non-conclusory factual allegations to support this claim.

Ibid. ¶ 26–108. As the three-judge panel majority correctly

recognized, “as to [the private-school parents], this claim

can only be understood as asserting that the State was

unconstitutionally interfering with [their] effort to choose

the forum that they believed would provide their children

with an adequate education.” App.106a. It is irrelevant

that Petitioners did not specifically label this claim as

a “Meyer-Pierce” claim in their complaint. The Meyer-

Pierce right arises under the Due Process Clause, and, by

their due process claim, Petitioners necessarily asserted

a claim for violation of the Meyer-Pierce right.

If the Court grants this Petition and rules that

Petitioners’ case is not moot, Petitioners can press forward

with their Meyer-Pierce and equal protection claims on

remand. The Court should grant this Petition to allow

Petitioners the opportunity to do just that.

CONCLUSION

For the reasons stated, the Court should grant the

petition for writ of certiorari.

Respectfully submitted,

Harmeet Dhillon

Mark Trammell

Counsel of Record

Josh Dixon

Mark P. Meuser

Eric Sell

Dhillon Law Group, Inc.

Center for A merican Liberty

177 Post Street, Suite 700

1311 South Main Street,

San Francisco, CA 94108

Suite 302

(415) 433-1700

Mount Airy, MD 21771

harmeet@dhillonlaw.com

Counsel for Petitioners

APPENDIX

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED JUNE 15, 2022

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 20-56291

D.C. No. 2:20-cv-06472-SVW-AFM

MATTHEW BRACH, AN INDIVIDUAL;

JESSE PETRILLA, AN INDIVIDUAL; LACEE

BEAULIEU, AN INDIVIDUAL; ERICA SEPHTON,

AN INDIVIDUAL; KENNETH FLEMING, AN

INDIVIDUAL; JOHN ZIEGLER, AN INDIVIDUAL;

ALISON WALSH, AN INDIVIDUAL; ROGER

HACKETT, AN INDIVIDUAL; CHRISTINE

RUIZ, AN INDIVIDUAL; Z. R., A MINOR; ADE

ONIBOKUN, AN INDIVIDUAL; BRIAN HAWKINS,

AN INDIVIDUAL; TIFFANY MITROWKE, AN

INDIVIDUAL; MARIANNA BEMA; ASHLEY

RAMIREZ, AN INDIVIDUAL,

Plaintiffs-Appellants,

GAVIN NEWSOM, IN HIS OFFICIAL CAPACITY

AS THE GOVERNOR OF CALIFORNIA; ROB

BONTA, IN HIS OFFICIAL CAPACITY AS THE

ATTORNEY GENERAL OF CALIFORNIA; TOMAS

ARAGON, IN HIS OFFICIAL CAPACITY AS

THE STATE PUBLIC HEALTH OFFICER AND

DEPARTMENT OF PUBLIC HEALTH DIRECTOR;

TONY THURMOND, IN HIS OFFICIAL CAPACITY

AS STATE SUPERINTENDENT OF PUBLIC

INSTRUCTION AND DIRECTOR OF EDUCATION,

Defendants-Appellees.

Appendix A

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted En Banc January 24, 2022

Pasadena, California

Filed June 15, 2022

Before: Mary H. Murguia, Chief Judge, and

M. Margaret McKeown, Kim McLane Wardlaw,

Ronald M. Gould, Richard A. Paez, Marsha S. Berzon,

Sandra S. Ikuta, Jacqueline H. Nguyen, Paul J.

Watford, Ryan D. Nelson, and Daniel A. Bress,

Circuit Judges.

Opinion by Judge McKeown;

Dissent by Judge Paez;

Dissent by Judge Berzon

SUMMARY*

CIVIL RIGHTS

The en banc court dismissed as moot an appeal

from the district court’s summary judgment in favor of

California Governor Newsom and state officials in an

action brought by a group of parents and a student alleging

defendants violated federal law when they ordered schools

to suspend in-person instruction in 2020 and early 2021,

at a time when California was taking its first steps of

navigating the Covid-19 pandemic.

* This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the reader.

Appendix A

The en banc court held that this was a classic case in

which, due to intervening events, there was no longer a live

controversy necessary for Article III jurisdiction. Nor was

there any effective relief that could be granted by the court.

The parents had not brought a claim for damages; they

sought a declaratory judgment that Governor Newsom’s

executive orders, to the extent they incorporated guidance

on school reopening, were unconstitutional. Relatedly,

they sought an injunction against the 2020-21 Reopening

Framework. But Governor Newsom has rescinded the

challenged executive orders, and the 2020-21 Reopening

Framework has been revoked. Schools now operate under

the 2021-22 Guidance, which declares that all schools may

reopen for in-person learning. And the parents conceded

that, since April 2021, there has been no “state-imposed

barrier to reopening for in-person instruction.” The

actual controversy has evaporated. Bottom line: there

was no longer any state order for the court to declare

unconstitutional or to enjoin.

The en banc court rejected plaintiffs’ assertion that

the case survived under two exceptions to mootness: the

voluntary cessation exception and the capable of repetition

yet evading review exception. Neither exception saved

their case. The dramatic changes from the early days of

the pandemic, including the lifting of all restrictions on

in-person learning, fundamentally altered the character

of this dispute. The en banc court joined the numerous

other circuit courts across the country that have recently

dismissed as moot similar challenges to early pandemic

restrictions.

Appendix A

Dissenting, Judge Paez, joined by Judges Berzon,

Ikuta, R. Nelson and Bress, stated that, mindful of the

Supreme Court’s clear directives to California on this

issue and the fact that Governor Newsom’s State of

Emergency remains operative, he would hold that this

case was not moot and affirm the district court on the

merits. This case fit within the “capable of repetition, yet

evading review” exception to mootness. The fact remained

that the pandemic is not over. Governor Newsom has not

relinquished his emergency powers, nor has the California

Legislature stripped him of those powers. So long as

Governor Newsom retains the specific power to impose

similar restrictions, and the pandemic continues, Judge

Paez would find this question “capable of repetition.”

Because Judge Paez would not find this case moot,

he briefly addressed the reasons why he would affirm

the district court’s grant of summary judgment to the

State on the parents’ substantive due process and equal

protection claims. The parents had not demonstrated that

distance learning failed to satisfy any basic educational

standard. Judge Paez further stated that the parents

failed to plead their claim that the school closure orders

violated their right to send their children to private school

under Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67

L. Ed. 1042 (1923) and Pierce v. Society of the Sisters of

the Holy Names of Jesus & Mary, 268 U.S. 510, 45 S. Ct.

571, 69 L. Ed. 1070 (1925). Judge Paez would therefore

dismiss this portion of the appeal.

Dissenting, Judge Berzon joined Judge Paez’s dissent

in full. In particular, Judge Berzon agreed that the merits

Appendix A

of the question of whether parents of children who attend

private schools (and only those parents) have a right to

access an in-person education for their children was

waived by the plaintiffs and was not properly before this

court. Because the majority of the three-judge panel

nonetheless reached the issue and held that parents of

children in private school have a substantive due process

right to have their children attend in-person classes,

including during a medical emergency, Judge Berzon

wrote separately to dispel any suggestion that the waived

issue could have possible merit were it to be raised in a

later case.

OPINION

McKEOWN, Circuit Judge:

Much has changed since the COVID-19 pandemic

began. One thing that has stayed the same is that federal

courts may not rule on moot or hypothetical questions.

Here, a group of parents and one student ask us to pass

judgment on whether California state officials violated

federal law when they ordered schools to suspend inperson instruction in 2020 and early 2021, at a time when

California was taking its first steps navigating the largest

public health crisis since the Great Influenza Epidemic

of 1918.

Fortunately, the situation in California has changed

dramatically with the introduction of vaccines and other

measures. The State of California has rescinded its

orders, students have been back in the classroom for a

Appendix A

year, and the parties agree there is “currently no longer

any state-imposed barrier to reopening for in-person

instruction.” The parents urge us to decide this case

anyway, suggesting that California might, maybe one

day, close its schools again. In effect, the parents seek an

insurance policy that the schools will never ever close,

even in the face of yet another unexpected emergency or

contingency. The law does not require California to meet

that virtually unattainable goal; our jurisdiction is limited

to live controversies and not speculative contingencies.

Joining the reasoning of the many other circuits that

have recently considered challenges to early COVID-19

related restrictions, we conclude that the mere possibility

that California might again suspend in-person instruction

is too remote to save this case. We dismiss the appeal as

moot.

BACKGROUND

A. Factual Background

The 2019-2020 School Year

In early March 2020, the World Health Organization

declared a global pandemic in response to the novel

coronavirus, SARS-CoV-2, responsible for the coronavirus

disease 2019 (“COVID-19”). Then-President Donald

Trump declared a national emergency and restricted

international travel. Governor Gavin Newsom declared

a state of emergency within California, and issued

Executive Order N-33-20, requiring Californians to “heed

the current State public health directives” including the

Appendix A

requirement “to stay home or at their place of residence.”

Cal. Exec. Order N-33-20 (March 19, 2020). As a result,

many public-facing institutions and businesses were

closed. Schools closed their physical buildings, but

students finished out the remaining few months of the

school year with remote instruction.

The 2020-2021 School Year

In advance of the new school year, in summer 2020,

the California Department of Public Health announced

its plans for reopening schools. The “COVID-19 and

Reopening In-Person Learning Framework for K-12

Schools in California, 2020-2021 School Year” (“202021 Reopening Framework”) was developed “to support

school communities” as they determined “when and how to

implement in-person instruction.” Under the framework,

schools were permitted to permanently reopen once

the rate of COVID-19 transmission in their local areas

stabilized. Importantly, once a school reopened under the

2020-21 Reopening Framework, it was not required to

close again, even if local COVID-19 rates later rose. The

2020-21 Reopening Framework ratchetted in only one

direction: toward reopening.1

1. The 2020-21 Reopening Framework was refined at various

points as to the benchmarks local areas were required to meet before

schools were permitted to reopen. Virtually all of these changes

(save one example) relaxed the relevant criteria, allowing schools

to reopen sooner. Like the original 2020-21 Reopening Framework,

each amended version of the framework made clear that no school

would be required to close again after reopening.

Appendix A

Fourteen parents and one student (collectively “the

parents”) filed suit against Governor Newsom and other

California officials just four days after the 2020-21

Reopening Framework was announced. They alleged that

the State’s decision to delay reopening schools until local

conditions improved violated a “fundamental right to a

basic, minimum education” located in the Due Process and

Equal Protection Clauses of the Fourteenth Amendment,

and also violated various federal civil rights statutes.

By m id-December, the U. S . Food a nd Dr ug

Administration authorized the first vaccine for the

prevention of COVID-19. More vaccines were soon

authorized, and doses of the vaccines were gradually made

available to the public in late 2020 and early-to-mid 2021.

Although not initially authorized for use by children, the

vaccine is now available for those as young as five years old.

The introduction of vaccines and California’s

continued implementation of the 2020-21 Reopening

Framework allowed an ever-increasing number of schools

to reopen. By spring 2021, all of the parents’ schools had

been permitted to reopen. The parents acknowledged in

an April 26, 2021, court filing that there was “currently

no longer any state-imposed barrier to reopening for inperson instruction.”

The 2021-2022 School Year

California reached a significant benchmark during

the 2021 summer holidays, when Governor Newsom

announced that over 50% of Californians had received a

full course of COVID-19 vaccination treatments. He issued

Appendix A

Executive Order N-07-21, which formally rescinded the

Executive Order issued at the outset of the pandemic.

See Cal. Exec. Order N-07-21 (June 11, 2021) (rescinding

Cal. Exec. Order N-33-20). As a result, “all restrictions

on businesses and activities” derived from that earlier

executive order were rescinded, including the State Public

Health Officer’s March 2020 stay-at-home order. Id.

The following month, the State issued updated

guidance for the upcoming 2021-2022 school year. The

“COVID-19 Public Health Guidance for K-12 Schools in

California, 2021-22 School Year” (“2021-22 Guidance”)

imposes no restrictions on school reopening, recognizes

that “[i]n-person schooling is critical to the mental and

physical health and development of our students,” and is

“designed to keep California K-12 schools open for in-person

instruction safely during the COVID-19 pandemic.” 2

B. Procedural Background

The parents filed suit days after the 2020 -21

Reopening Framework was announced. Proceedings

moved swiftly before the district court, which denied the

parents’ motion for emergency injunctive relief on August

13, 2020, and granted summary judgment to the State on

December 1, 2020. The parents timely appealed, and we

granted their unopposed motion to expedite briefing and

argument.

Cal. Dep’t of Pub. Health, COVID-19 Public Health Guidance

for K-12 Schools in California, 2021-22 School Year (July 12, 2021),

as amended April 6, 2022, https://www.cdph.ca.gov/Programs/CID/

DCDC/Pages/COVID-19/K-12-Guidance-2021-22-School-Year.aspx.

10a

Appendix A

After this appeal was briefed, we asked the parties

to provide supplemental briefing on whether this case

was moot. The parents responded on April 26, 2021,

informing the court that their children’s schools had been

permitted to reopen and there was “no longer any stateimposed barrier to reopening.” They insisted, however,

that the case remained live under certain exceptions to

the mootness doctrine.

On July 12, 2021, the State issued the 2021-22

Guidance, lifting all restrictions on school reopening.

Eleven days later, a divided panel of this court held that

this case was not moot and reversed the district court in

part. See Brach v. Newsom, 6 F.4th 904, 921, 934 (9th Cir.),

vacated, 18 F.4th 1031 (9th Cir. 2021). Rejecting the State’s

claims of waiver, the panel accepted the parents’ new

argument on appeal that the Fourteenth Amendment’s

Due Process Clause guaranteed a fundamental right

to in-person education. See id. at 917-32. So holding,

the panel reversed the district court’s ruling on the due

process claim, remanded the equal protection claim for

further consideration, and affirmed the district court’s

grant of summary judgment on the remaining claims. See

id. at 934. We voted to rehear the case en banc. Brach v.

Newsom, 18 F.4th 1031, 1032 (9th Cir. 2021).

ANALYSIS

The threshold and ultimately only question we resolve

is whether this case is moot. The parents filed suit in the

early throes of the pandemic. At the time, California was

operating under the 2020-21 Reopening Framework,

11a

Appendix A

which allowed schools to permanently reopen once

local COVID-19 transmission rates fell below a certain

threshold. Unsatisfied with the delay, the parents asked

the district court to order an immediate reopening. The

district court rejected the request, but the reopening

has happened anyway—California’s schools have been

operating in person for a year—meaning the parents have

gotten everything they asked for.

This is a classic case in which, due to intervening

events, there is no longer a live controversy necessary for

Article III jurisdiction. Nor is there any effective relief

that can be granted by the court. The parents have not

brought a claim for damages; they sought a declaratory

judgment that Governor Newsom’s executive orders, to the

extent they incorporated guidance on school reopening,

were unconstitutional. Relatedly, they sought an injunction

against the 2020-21 Reopening Framework, which they

labeled the “State Order.” But Governor Newsom has

rescinded the challenged executive orders, and the 202021 Reopening Framework has been revoked. Schools now

operate under the 2021-22 Guidance, which declares that

all schools may reopen for in-person learning. And the

parents concede that, since April 2021, there has been

no “state-imposed barrier to reopening for in-person

instruction.” The actual controversy has evaporated.

Bottom line: there is no longer any state order for the

court to declare unconstitutional or to enjoin. It could

not be clearer that this case is moot. See Already, LLC v.

Nike, Inc., 568 U.S. 85, 91, 133 S. Ct. 721, 184 L. Ed. 2d 553

(2013) (“No matter how vehemently the parties continue

to dispute the lawfulness of the conduct that precipitated

12a

Appendix A

the lawsuit, the case is moot if the dispute ‘is no longer

embedded in any actual controversy about the plaintiffs’

particular legal rights.’” (quoting Alvarez v. Smith¸ 558

U.S. 87, 93, 130 S. Ct. 576, 175 L. Ed. 2d 447 (2009))).

The parents nonetheless urge us to advise whether

California’s actions in the early days of the pandemic

violated federal law, arguing their case survives under two

exceptions to mootness: the voluntary cessation exception

and the capable of repetition yet evading review exception.

Neither exception saves their case. The dramatic changes

from the early days of the pandemic, including the lifting of

all restrictions on in-person learning, have fundamentally

altered the character of this dispute. We join the numerous

other circuit courts across the country that have recently

dismissed as moot similar challenges to early pandemic

restrictions. 3

See Eden, LLC v. Justice, No. 21-1079, F.4th , 2022 U.S. App.

LEXIS 15194, 2022 WL 1790282 (4th Cir. June 2, 2022) (concluding

challenge to early pandemic COVID-19 restriction was moot in light

of changed circumstances); Resurrection Sch. v. Hertel, No. 20-2256,

F.4th , 2022 U.S. App. LEXIS 14205, 2022 WL 1656719 (6th Cir.

May 25, 2022) (en banc) (same); Lighthouse Fellowship Church v.

Northam, 20 F.4th 157, 162-66 (4th Cir. 2021) (same); Bos. Bit Labs,

Inc. v. Baker, 11 F.4th 3, 8-12 (1st Cir. 2021) (same); County of Butler

v. Governor of Pa., 8 F.4th 226, 230-31 (3rd Cir. 2021) (same), cert.

denied, 142 S. Ct. 772, 211 L. Ed. 2d 482 (2022); Hawse v. Page, 7

F.4th 685, 692-94 (8th Cir. 2021) (same); Conn. Citizens Def. League,

Inc. v. Lamont, 6 F.4th 439, 448 (2d Cir. 2021) (same). But see Elim

Romanian Pentecostal Church v. Pritzker, 22 F.4th 701, 702 (7th

Cir. 2022) (per curiam).

13a

Appendix A

A. The Voluntary Cessation Exception

The Supreme Court has long held that “a defendant

cannot automatically moot a case simply by ending its

unlawful conduct once sued.” Already, 568 U.S. at 91.

But this doctrine, which “traces to the principle that a

party should not be able to evade judicial review, or to

defeat a judgment, by temporarily altering questionable

behavior,” does not apply here. City News & Novelty, Inc.

v. City of Waukesha, 531 U.S. 278, 284 n.1, 121 S. Ct. 743,

148 L. Ed. 2d 757 (2001). The State did not abandon its

policy after suit was filed in July 2020. Rather, the 202021 Reopening Framework, which was adopted before

the litigation, automatically permitted schools to reopen

permanently once their local areas achieved certain

COVID-19 benchmarks. The State did not rescind its

school closure orders in response to the litigation—the

orders “expired by their own terms” after COVID-19

transmission rates declined and stabilized. County of

Butler v. Governor of Pa., 8 F.4th 226, 230 (3d Cir. 2021)

(holding voluntary cessation exception did not apply where

challenged COVID-19 restrictions “expired by their own

terms” after “more than half of all adults in Pennsylvania

were vaccinated”), cert. denied, 142 S. Ct. 772, 211 L. Ed.

2d 482 (2022); accord Spell v. Edwards, 962 F.3d 175, 17879 (5th Cir. 2020) (holding voluntary cessation exception

did not apply where challenged COVID-19 stay-at-home

orders “expired by their own terms”).

Even assuming the voluntary cessation exception

facially applies, it has no force here because the

State has carried its burden of establishing that “the

14a

Appendix A

challenged behavior cannot reasonably be expected to

recur.” Already, 568 U.S. at 96. Although we hold the

government to the same burden as private litigants in

making this determination, see Bell v. City of Boise, 709

F.3d 890, 898-99 & n.13 (9th Cir. 2013), we nonetheless

“treat the voluntary cessation of challenged conduct by

government officials with more solicitude . . . than similar

action by private parties,” Bd. of Trs. of Glazing Health

& Welfare Tr. v. Chambers, 941 F.3d 1195, 1198 (9th Cir.

2019) (en banc) (omission in original) (internal quotation

marks omitted). This is no bare deference: we probe the

record to determine whether the government has met its

burden, even as we grant it a presumption of good faith.

See Rosebrock v. Mathis, 745 F.3d 963, 971-72 (9th Cir.

2014) (identifying several factors for assessing claims of

voluntary cessation by government actors).

California has presented a strong case that the

current order opening schools is not a temporary move

to sidestep the litigation. Most importantly, the State

has “unequivocally renounce[d]” the use of school closure

orders in the future. Am. Diabetes Ass’n v. U.S. Dep’t of

the Army, 938 F.3d 1147, 1153 (9th Cir. 2019). The State

has consistently worked to reopen schools and Governor

Newsom has publicly “reaffirm[ed]” his “commitment

to keeping California’s schools open for safe, in-person

learning.”4 That reaffirmance is no mere statement of

Press Release, Off. of Governor Newsom, Governor Gavin

Newsom, Education Leaders Reaffirm Commitment to Keeping

California’s Schools Open for Safe, In-Person Learning (Dec.

22, 2021), https://www.gov.ca.gov/2021/12/22/education-leadersreaffirm-commit ment-to-keeping-californias-schools-open-for-safein-person-learning/ (capitalization removed).

15a

Appendix A

aspiration. The 2020-21 Reopening Framework was

rescinded and the 2021-22 Guidance is “designed to keep

California K-12 schools open for in-person instruction

safely during the COVID-19 pandemic.” Cal. Dep’t of

Pub. Health, COVID-19 Public Health Guidance for K-12

Schools in California, supra note 2. Consistent with this

commitment, no school has been forced to close again

after reopening.

Further strengthening California’s hand is the fact

that its decision to reopen schools is “entrenched” and

not “easily abandoned or altered in the future.” Fikre v.

FBI, 904 F.3d 1033, 1037-38 (9th Cir. 2018). Soon after

the pandemic began, the California legislature passed

an emergency statute allowing California’s public school

system to move online. Cal. Educ. Code § 43500 et seq.

(repealed Jan. 1, 2022). Recognizing the extraordinary

nature of the pandemic, but looking ahead, the legislature

included a sunset provision so this law would automatically

expire on June 30, 2021. Id. § 43511(b). The legislature also

included a clause causing it to self-repeal on January 1,

2022. Id. Both of these dates have come and gone and there

have been no efforts to reenact the emergency legislation,

meaning that California’s six million public school students

will continue to be offered instruction in-person for the

foreseeable future. 5 The “repeal of a statute relied upon

to justify otherwise [allegedly] unlawful conduct may be

analyzed as an event bearing on a prediction whether an

Although the legislature has taken steps to ensure that inperson education is the norm, it has also authorized schools to offer

remote instruction to a limited number of students who do not yet

wish to return to the classroom. See Cal. Educ. Code § 51745.

16a

Appendix A

attack on the conduct is moot.” 13C Charles Alan Wright,

Arthur R. Miller, & Edward H. Cooper, Federal Practice

and Procedure: Jurisdiction § 3533.6 (3d ed. 2008).

Indeed, the legislature has declared its intent “that local

educational agencies offer in-person instruction to the

greatest extent possible” going forward, Cal. Educ. Code.

§ 43520, and has enacted financial penalties for schools

that continue to operate remotely, see id. § 43521(c).6

Tellingly, California maintained in-person instruction

throughout the surge of the Omicron COVID-19 variant,

even while the State’s case count soared well past numbers

reached early in the pandemic. See Katherine Fung,

Despite Stricter COVID Restrictions, California’s Schools

Remained Open Amid Mass Closures, Newsweek (Jan.

10, 2022), https://www.newsweek.com/despite-strictercovid-restrictions-californias-schools-remained-openamid-mass closures-1667459. It is thus apparent that, as in

other jurisdictions, the “availability of vaccines and other

measures to combat the virus have led to a significant

change in the relevant circumstances.” Lighthouse

Fellowship Church v. Northam, 20 F.4th 157, 162-64

(4th Cir. 2021) (holding voluntary cessation doctrine did

not rescue otherwise moot challenge to early COVID-19

pandemic restriction); see also County of Butler, 8 F.4th

at 231 (holding challenge to early COVID-19 pandemic

restriction was moot in part because “the public health

landscape has so fundamentally changed”).

6. The dissent dismisses the legislature’s efforts to reopen

schools as a “red herring.” Dissent at 25 n.6. We disagree; the

legislature’s statutory enactments, policy statements, and structured

financial incentives all serve to entrench the State’s commitment to

reopening schools.

17a

Appendix A

The parents candidly acknowledge that circumstances

have changed since July 2020, when they filed their

complaint, but suggest that an unexpected reversal in the

public health situation could lead the Governor to once

again close schools. The dissent echoes this point, arguing

this case is not moot so long as pandemic conditions

might change and “Governor Newsom retains the specific

power to impose similar restrictions.” Dissent at 26. But

this speculative contingency and the fact “the Governor

has the power to issue executive orders cannot itself be

enough to skirt mootness, because then no suit against

the government would ever be moot.” Bos. Bit Labs,

Inc. v. Baker, 11 F.4th 3, 10 (1st Cir. 2021). Reasonable

expectation means something more than “a mere physical

or theoretical possibility.” Murphy v. Hunt, 455 U.S.

478, 482, 102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982). We

acknowledge that the Governor’s continuing authority

to close schools is a consideration in our analysis, see Bit

Labs, 11 F.4th at 12, but it is by no means dispositive.

As the D.C. Circuit has succinctly explained, “the mere

power to reenact a challenged [policy] is not a sufficient

basis on which a court can conclude that a reasonable

expectation of recurrence exists. Rather, there must be

evidence indicating that the challenged [policy] likely will

be reenacted.” Larsen v. U.S. Navy, 525 F.3d 1, 4, 381 U.S.

App. D.C. 69 (D.C. Cir. 2008) (citation omitted) (alterations

in original).7 It will always be true, in contexts beyond

7. The dissent bravely attempts to distinguish the flotilla of

recent circuit decisions finding similar cases moot, see supra note 3

(collecting cases), by emphasizing that here the Governor’s authority

derives from the California Emergency Services Act (“CESA”), Cal.

Gov’t Code. § 8550 et seq., which authorizes the Governor to assume

18a

Appendix A

the present case, that unexpected events may prompt

the government to adopt extraordinary measures. Given

the State’s assurances and the changed circumstances

surrounding the pandemic, we conclude these fears are

too “remote and speculative” to serve as a firm foundation

for our jurisdiction. Lee v. Schmidt-Wenzel, 766 F.2d 1387,

1390 (9th Cir. 1985).

The parents fall back on the Supreme Court’s decision

in Roman Catholic Diocese of Brooklyn v. Cuomo, 141

S. Ct. 63, 208 L. Ed. 2d 206 (2020) (per curiam), but the

religious restrictions at issue there are hardly comparable.

In Diocese of Brooklyn, religious organizations challenged

New York’s COVID-19 restrictions on in-person religious

services. These restrictions were “regularly change[d]” by

the State, often multiple times in the same week. Id. at 68

& n.3. Although the restrictions were temporarily lifted

after the case reached the Supreme Court, the case was

not moot because the plaintiffs lived under the “constant

threat” that the restrictions would be reimposed. Id. at

68. By contrast, California’s approach to school reopening

has been steady and consistent, allowing schools to

permanently reopen once their local areas achieved the

specified benchmarks. No school has been required to

close again after reopening. California officials have

not “mov[ed] the goalpost.” Tandon v. Newsom, 141 S.

additional powers upon declaring a state of emergency. We attach

less weight to the Governor’s continuing reliance on the CESA than

our dissenting colleagues because the CESA can be invoked at any

time without prior authorization or fact finding—even if the Governor

renounced these powers today, he could assume them again tomorrow

at the stroke of a pen.

19a

Appendix A

Ct. 1294, 1297, 209 L. Ed. 2d 355 (2021) (per curiam)

(internal citation omitted). Rather, reopening schools has

remained front and center from the beginning, in accord

with California’s consistent policy.

In sum, the State has carried its burden of establishing

there is no reasonable expectation the challenged conduct

will recur. California has renounced any intention of

closing its schools again, the school closure orders were

temporary measures designed to expire by their own

terms, and the schools have been operating in-person for

a year.

B. The Capable of Repetition Yet Evading Review

Exception

The capable of repetition yet evading review “exception

is limited to extraordinary cases where ‘(1) the duration

of the challenged action is too short to allow full litigation

before it ceases, and (2) there is a reasonable expectation

that the plaintiffs will be subjected to it again.’” Alaska

Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851, 854-55

(9th Cir. 1999) (quoting Greenpeace Action v. Franklin,

14 F.3d 1324, 1329 (9th Cir. 1992)).

Like the parties, we assume that the first condition

has been satisfied. We nonetheless conclude that this

exception to mootness does not apply because there is no

“reasonable expectation” that California will once again

close the parents’ schools. Our rationale for rejecting this

exception mirrors much of our analysis regarding the

voluntary cessation exception. See Armster v. U.S. Dist.

20a

Appendix A

Ct. for Cent. Dist. of Cal., 806 F.2d 1347, 1360 n.20 (9th

Cir. 1986) (noting that the voluntary cessation and the

capable of repetition yet evading review exceptions are

“analogous”). The challenged orders have long since been

rescinded, the State is committed to keeping schools open,

and the trajectory of the pandemic has been altered by the

introduction of vaccines, including for children, medical

evidence of the effect of vaccines, and expanded treatment

options. The parents’ argument that the pandemic may

worsen and that the State may impose further restrictions

is speculative. The test is “reasonable expectation,” not

ironclad assurance.

***

This case is moot and no exception to mootness applies.

We dismiss the appeal and remand with instructions for

the district court to vacate its judgment and dismiss the

complaint. See Chambers, 941 F.3d at 1200.

DISMIS SED A N D REM A N DED WITH

INSTRUCTIONS.

PAEZ, Circuit Judge, dissenting, with whom BERZON,

IKUTA, R. NELSON, and BRESS, Circuit Judges, join:

The courthouse doors ought to stay open during a

crisis. Mindful of the Supreme Court’s clear directives

to California on this issue and the fact that Governor

Newsom’s State of Emergency remains operative, I would

hold that this case is not moot and affirm the district court

on the merits.

21a

Appendix A

This case fits within the “capable of repetition, yet

evading review” exception to mootness, which applies

where “(1) the challenged action is in its duration too

short to be fully litigated prior to cessation or expiration,

and (2) there is a reasonable expectation that the same

complaining party will be subject to the same action

again.” Fed. Election Comm’n v. Wis. Right to Life, Inc.,

551 U.S. 449, 462, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007)

(quoting Spencer v. Kemna, 523 U.S. 1, 17, 118 S. Ct. 978,

140 L. Ed. 2d 43 (1998)).

“Reasonable” in this context is not an exacting bar.1

The Supreme Court has indicated that it is somewhat less

than probable:

[W]e have found controversies capable of

repetition based on expectations that, while

reasonable, were hardly demonstrably probable

. . . Our concern in these cases . . . was whether

the controversy was capable of repetition and

not . . . whether the claimant had demonstrated

that a recurrence of the dispute was more

probable than not.

1. As the majority notes, the parties agree that the first

condition is satisfied. This accords with the Supreme Court’s holding

that “a period of two years is too short to complete judicial review

of the lawfulness” of an action. Kingdomware Techs., Inc. v. United

States, 579 U.S. 162, 170, 136 S. Ct. 1969, 195 L. Ed. 2d 334 (2016)

(citing S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 514-16, 31 S. Ct.

279, 55 L. Ed. 310 (1911)).

22a

Appendix A

Honig v. Doe, 484 U.S. 305, 318 n.6, 108 S. Ct. 592, 98 L.

Ed. 2d 686 (1988) (emphasis in original) (internal citations

omitted). It certainly does not require “repetition of every

‘legally relevant’ characteristic.” Wis. Right to Life, 551

U.S. at 463.

The Supreme Court has repeatedly found pandemic

restrictions capable of repetition. In Roman Catholic

Diocese of Brooklyn v. Cuomo, the Court found that a

church’s challenge to New York’s pandemic restrictions

was not moot where “[t]he Governor regularly change[d]

the classification of particular areas without prior notice”

and retained the authority to continue doing so. 141 S. Ct.

63, 68, 208 L. Ed. 2d 206 (2020) (per curiam). Though the

Supreme Court did not identify which mootness exception

applied, it cited to Wisconsin Right to Life’s discussion of

the “capable of repetition, yet evading review” exception.

Id. (citing Wis. Right to Life, 551 U.S. at 462). The Supreme

Court applied Roman Catholic Diocese in Tandon v.

Newsom, holding that a challenge to California’s pandemic

restrictions on religious gatherings was not moot because

California officials “retain[ed] authority to reinstate” the

challenged restrictions “at any time.” 141 S. Ct. 1294, 1297,

209 L. Ed. 2d 355 (2021) (per curiam) (citing S. Bay United

Pentecostal Church v. Newsom, 141 S. Ct. 716, 720, 209

L. Ed. 2d 22 (2021) (Statement of Gorsuch, J.) (explaining

that case was not moot because California officials have a

record of “moving the goalposts”)).

The majority points out that other circuits have recently

found similar challenges to pandemic restrictions moot. 2

Some of these cases analyzed mootness under the voluntary

cessation exception; because the majority cites these cases and

23a

Appendix A

A closer look at those cases is instructive. The First Circuit

has noted that one of the crucial factors in determining

mootness in this scenario is whether the defendant retains

the power to issue similar orders. Thus, the First Circuit

found that a challenge to pandemic restrictions was not

moot where Maine’s governor retained the power to

reimpose such restrictions. Bayley’s Campground, Inc.

v. Mills, 985 F.3d 153, 157-58 (1st Cir. 2021). But it found

a similar challenge moot when Massachusetts Governor

Baker terminated a COVID-19 state of emergency, ending

his authority to issue emergency orders. Bos. Bit Labs,

Inc. v. Baker, 11 F.4th 3, 7 (1st Cir. 2021). There, the First

Circuit specifically reasoned that the lifting of the state

of emergency, among other factors, warranted a different

result: “[H]ere (unlike [in Bayley’s]) the offending order is

gone, along with the COVID-19 state of emergency.” Id. at

11. That court also reasoned that Roman Catholic Diocese

was not on point, because unlike in that case, “neither the

challenged restriction nor the state of emergency is in

effect.” Id. (noting that this constituted a “night-and-day

difference[]”).

Other circuits have followed this logic. The Fourth

Circuit found a pandemic restrictions challenge moot

after “the state of emergency in Virginia upon which

[the restrictions] were predicated ended. . . . With the

termination of the state of emergency, the Governor’s

power to issue new executive orders involving COVID19-related restrictions was extinguished.” Lighthouse

because the following analysis focuses on the facts underlying those

decisions—and on how the facts of California’s pandemic restrictions

differ—I discuss both.

24a

Appendix A

Fellowship Church v. Northam, 20 F.4th 157, 159, 163-64

(4th Cir. 2021). See also County of Butler v. Governor of

Pa., 8 F.4th 226, 230 (3d Cir. 2021), cert. denied sub nom.

Butler County, Pa. v. Wolf, 142 S. Ct. 772, 211 L. Ed. 2d

482 (2022) (holding that a challenge to pandemic

restrictions was moot where health circumstances

had changed and Pennsylvania Constitution had been

amended to restrict Pennsylvania Governor’s ability

to enter similar orders);3 Elim Romanian Pentecostal

Church v. Pritzker, 962 F.3d 341, 344-45 (7th Cir. 2020),

cert. denied, 141 S. Ct. 1753, 209 L. Ed. 2d 514 (2021)

(holding that a challenge to pandemic restrictions was

not moot because the new executive order replacing the

challenged restrictions included criteria for “replacing

the current rules with older ones”).4

True, not all circuits have considered this factor. In

Hawse v. Page, the Eight Circuit held that a change in

pandemic circumstances mooted a challenge to a county’s

pandemic restrictions, without discussing whether the

county retained the authority to reimpose restrictions. 7

F.4th 685, 692-94 (8th Cir. 2021). See also Resurrection

Sch. v. Hertel, No. 20-2256, 2022 U.S. App. LEXIS 14205,

2022 WL 1656719, at *1 (6th Cir. May 25, 2022) (en banc)

3. Plaintiffs in County of Butler evidently argued that the state

retained the power to issue orders similar to those challenged despite

the change in the state’s constitution. 8 F.4th at 231. The Third Circuit

does not explain how this argument comports with the changes to

the Pennsylvania constitution.

4. The Seventh Circuit later dismissed this case on other

grounds. Elim Romanian Pentecostal Church v. Pritzker, 22 F.4th

701 (7th Cir. 2022).

25a

Appendix A

(same); Conn. Citizens Def. League, Inc. v. Lamont, 6

F.4th 439, 446 (2d Cir. 2021) (same).

California’s Emergency Services Act, passed in

1970, empowers the California governor to proclaim a

state of emergency in response to war, disease, natural

disaster, or other “condition[] of disaster.” Cal. Gov’t

Code §§ 8625, 8558. Pursuant to this authority, Governor

Newsom first declared a state of emergency on March 4,

2020. Under this state of emergency, Governor Newsom

ordered California residents to stay at home, carving out

an exception for “[w]orkers supporting public and private

. . . K-12 schools . . . for the purposes of distance learning,

provision of school meals, or care and supervision of

minors to support essential workforce.” And thus, schools

closed. Governor Newsom has not terminated this state

of emergency. 5

Governor Newsom operated—and continues to

operate—under this emergency order.6 It is this exercise

of power that the parents challenge. The majority takes

5. Governor Newsom most recently extended the state of

emergency on February 20, 2022. See Cal. Exec. Order N-5-22.

6. The majority observes that the California legislature has

allowed the law authorizing distance learning in California public

schools to expire. This is a red herring. That statute did not become

effective until June 29, 2020—long after Governor Newsom closed

schools under his emergency powers. Cal. Educ. Code §§ 43500 et

seq. (effective June 29, 2020 to December 31, 2021). Its expiration,

therefore, does not strip Governor Newsom of that power. Rather, the

majority’s discussion of the statute highlights the fact that Governor

Newsom has the power unilaterally to close schools.

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Appendix A

some comfort from the fact that “[v]irtually all of [the

Governor’s] changes [to school reopening plans] (save one

example) relaxed the relevant criteria” for reopening.

That “one example” is instructive: under the power cited

above, Governor Newsom has both loosened and tightened

restrictions on school closures since this case was filed.

As the district court explained, the State replaced its

statewide monitoring list with a tier-based system on

August 28, 2020. Brach v. Newsom, No. 2:20-CV-06472SVW, 2020 U.S. Dist. LEXIS 232008, 2020 WL 7222103,

at *1 (C.D. Cal. Dec. 1, 2020). The State placed counties

on the monitoring list—where schools could not reopen—

where case rates exceeded 100 per 100,000 people over

fourteen days or that figure exceeded 25 cases and the

test positivity rate was above 8%. The tier-based system

placed counties in the most restrictive category—where

schools could not reopen—when case rates exceeded 7 per

100,000 people per day or the test positivity rate exceeded

8%. Thus, a county with 20 cases per 100,000 people per

week and a 9% test positivity rate would not have been on

the earlier monitoring list, but would have been in Tier

1 under the later guidance. The emergency order grants

Governor Newsom the power to act unilaterally in closing

schools—power that he has used to both loosen and tighten

restrictions since this lawsuit began.

Is this case moot? It does not fit neatly into the fact

pattern of any of the cases decided thus far by the Supreme

Court. However, I would side with the First, Third,

Fourth, and Seventh Circuits—and follow the Supreme

Court’s guidance—and find that the Governor’s continuing

authority under his pandemic emergency order is a crucial

27a

Appendix A

factor in this analysis. I would hold that this case is not

moot. The fact remains that the pandemic is not over.

Governor Newsom has not relinquished his emergency

powers, nor has the California Legislature stripped him of

those powers. The majority errs in sidestepping this fact.

So long as Governor Newsom retains the specific power to

impose similar restrictions, and the pandemic continues,

I would find this question “capable of repetition.” 7

A brief discussion of the first prong of this test—the

duration of the challenged action—underscores this point.

Both parties agree that the challenged restrictions were

brief enough to evade review. Their duration, therefore,

suppors the parents’ argument. And yet the majority cites

the fact that the restrictions no longer impact the parents

as proof that this case is moot! In its brief discussion of the

“capable of repetition, yet evading review” exception, the

majority hangs its hat on the fact that “[t]he challenged

orders have long since been rescinded.” And so they

7. The majority contends that the continuation of the Governor’s

emergency order carries little weight because it “can be invoked at

any time without prior authorization or fact finding—even if the

Governor renounced these powers today, he could assume them again

tomorrow at the stroke of a pen.” I agree that the theoretical ability

to declare a state of emergency that grants an official the power to

issue similar restrictions would not necessarily rescue an otherwise

moot case. But see Bd. of Trs. of Glazing Health & Welfare Tr. v.

Chambers, 941 F.3d 1195, 1199 (9th Cir. 2019) (en banc) (a challenge

to repealed, amended, or expired legislation is moot unless “there

is a reasonable expectation that the legislative body will reenact the

challenged provision or one similar to it.”). I would draw the line in

this case at the continuation of this emergency order—especially

because that action differs from those of officials in other states.

28a

Appendix A

have—which is exactly why this case evades review. To

suggest that this is not capable of repetition, yet evading

review because the orders have already expired subverts

the purpose of this doctrine. 8

The majority accuses the parents of seeking “an

insurance policy that the schools will never ever close,

even in the face of yet another unexpected emergency or

contingency.” This exaggerates the parents’ claim. I read

the parents as seeking judicial review of the contours

of the Governor’s authority under this unprecedented

expansion of executive power. Were that power to end,

this case would be moot. As it has not, I would hold that

the parents’ claims are not moot.9

8. Amici take this flawed line of reasoning further. Santa

Clara County argues that “if the State were to again bar in-person

instruction, it would do so in response to materially different

conditions . . . Thus, in the unlikely event that the State does reimpose

distance learning, those rules would give rise to a new controversy.”

First, we cannot disregard the Supreme Court’s holding that the

“capable of repetition” prong does not require “repetition of every

‘legally relevant’ characteristic.” Wis. Right to Life, 551 U.S. at

463. Additionally, Santa Clara County reminds us that this issue

is “capable of repetition” because Governor Newsom retains the

power to close schools. And further, forcing the parents to bring a

new lawsuit every time Governor Newsom exercises that authority

to close schools—closures that are, as demonstrated, too brief to be

fully litigated—guarantees that this issue will evade review. It is the

exact scenario that the “capable of repetition, yet evading review”

doctrine was crafted to avoid.

9. For essentially the same reasons that this case is capable

of repetition yet evading review, the voluntary cessation doctrine

also applies. Under that “stringent” doctrine, the state has the

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Appendix A

II.

Because I would find that this case is not moot, I would

consider the merits of the parents’ claims. I briefly sketch

the reasons I would affirm the district court.

The parents have not demonstrated that distance

learning fails to satisfy any basic educational standard.

For this reason, I would affirm the district court’s grant

of summary judgment to the State on the parents’

substantive due process claim.

Substantive due process forbids the government

from infringing on “fundamental” liberty interests.

Reno v. Flores, 507 U.S. 292, 301-02, 113 S. Ct. 1439,

123 L. Ed. 2d 1 (1993). The Supreme Court has, so far,

declined to recognize a substantive due process right

to a basic minimum education. See San Antonio Indep.

Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 93 S. Ct. 1278, 36

L. Ed. 2d 16 (1973) (“Education, of course, is not among

the rights afforded explicit protection under our Federal

Constitution.”); Plyler v. Doe, 457 U.S. 202, 221, 102 S.

Ct. 2382, 72 L. Ed. 2d 786 (1982) (“Public education is

not a ‘right’ granted to individuals by the Constitution.”)

(citing Rodriguez, 411 U.S. at 35); Papasan v. Allain, 478

U.S. 265, 285, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)

“heavy burden” to show that it is “absolutely clear that [its] allegedly

wrongful behavior could not reasonably be expected to recur.” Native

Village of Nuiqsut v. Bureau of Land Mgmt., 9 F.4th 1201, 1215

(9th Cir. 2021) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d

610 (2000)). For the reasons I have already explained, the state has

not met this burden.

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Appendix A

(“As Rodriguez and Plyler indicate, this Court has not

yet definitively settled the questions whether a minimally

adequate education is a fundamental right. . .”)).

I would leave for another day the question of whether

there exists any constitutional right to a basic minimum

education and follow the district court’s alternate

reasoning that the parents presented neither a “standard

for evaluating what should count as a minimally adequate

education” nor sufficient record evidence to show that

their children are not being educated.10 Absent a workable

standard or a much more substantial record, I would

affirm the district court’s grant of summary judgment to

the State on this claim.11

10. The parents argue that their students experienced

technology hurdles, inferior Zoom lessons, and difficulty returning

assignments on time, and were denied standardized testing

to measure their progress, grades to improve their GPAs, and

extracurricular activities to bolster their college applications.

Caselaw does not establish that these are constitutionally-required

educational components, nor are the parents’ declarations sufficiently

detailed to establish that the students, as a whole, could not access

any minimally adequate education whatsoever.

11. I do not discount the very real hardship students with

disabilities faced when attempting distance learning. Plaintiff

Christine Ruiz’s autistic sons were partially or fully unable to

participate in their Zoom classroom meetings and did not receive

support services that they require. Plaintiff Ashley Ramirez’s

autistic son “cannot tolerate distance learning” and “basically shut

down.” And Plaintiff Brian Hawkins’s son with ADHD was not

provided with the support services he requires. But the parents

abandoned their statutory claims on behalf of disabled students on

appeal, choosing instead to devote space to the claims of private

school students.

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Appendix A

III.

I would affirm the district court’s grant of summary

judgment to the State on the parents’ equal protection

claim. As explained above, I would not reach the question

of whether there exists a fundamental constitutional right

to a basic minimum education, because in any event,

the parents here have not shown that their children are

being deprived of a minimally adequate education. Thus,

no fundamental right was implicated. When an equal

protection claim does not implicate a “fundamental”

right or discriminate against a suspect class,12 “it will

ordinarily survive an equal protection attack so long

as the challenged classification is rationally related to a

legitimate governmental purpose.” Kadrmas v. Dickinson

Pub. Schs., 487 U.S. 450, 457-58, 108 S. Ct. 2481, 101

L. Ed. 2d 399 (1988). The Supreme Court has held that

“[s]temming the spread of COVID-19 is unquestionably

a compelling interest.” Roman Catholic Diocese of

Brooklyn, 141 S. Ct. at 67. Because the school-closure

order was rationally related to this purpose when enacted,

I would hold that it survives the parents’ equal protection

attack.

12. Classifications based on the prevalence of COVID, or on the

type of educational provider (e.g., public schools vs. summer camps),

do not implicate suspect classes. Cf. Rodriguez, 411 U.S. at 28 (noting

that a class lacks the “traditional indicia” of being a suspect class if

“the class is not saddled with such disabilities, or subjected to such

a history of purposeful unequal treatment, or relegated to such a

position of political powerlessness as to command extraordinary

protection from the majoritarian political process”).

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Appendix A

IV.

The parents’ opening brief before us asserts that the

school closure orders violate the parents’ right to send

their children to private school under Meyer v. Nebraska,

262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) and

Pierce v. Society of the Sisters of the Holy Names of

Jesus & Mary, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070

(1925). The State asserts that this argument is waived.

In response, the parents contend that their district court

briefing preserves a Meyer-Pierce argument, and that, in

any case, we may exercise our discretion to consider this

argument on appeal.

Not so. The parents did not merely fail to raise

this argument; they failed to plead this claim. Their

complaint only asserts that the State has violated

students’”fundamental right to receive a basic minimum

education.” While we may consider arguments not raised

before the district court, see AMA Multimedia, LLC v.

Wanat, 970 F.3d 1201, 1213 (9th Cir. 2020), the parents

offer no authority—and I could not find any—to support

the idea that we have discretion to consider claims not

pled in the complaint.

Examining the Meyer-Pierce right shows that the

parents did not allege a Meyer-Pierce claim. Meyer struck

down a state law barring the teaching of any language other

than English to children younger than the ninth grade.

262 U.S. at 397, 400-01. The Supreme Court held that that

the Fourteenth Amendment protected as a liberty interest

the teacher’s “right thus to teach and the right of parents

to engage him so to instruct their children.” Id. Pierce

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Appendix A

struck down Oregon’s compulsory public education law.

268 U.S. at 534-35. The Supreme Court determined that

under Meyer, the law “unreasonably interfere[d] with the

liberty of parents and guardians to direct the upbringing

and education of children under their control” because the

liberty interest protected by the Fourteenth Amendment

“excludes any general power of the state to standardize

its children by forcing them to accept instruction from

public teachers only.” Id.

As the above holdings demonstrate, the MeyerPierce right is a right asserted by parents. See also, e.g.,

Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S. Ct. 1526, 32

L. Ed. 2d 15 (1972) (describing Pierce as “a charter of

the rights of parents”); cf. Prince v. Massachusetts, 321

U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944) (noting

in passing that “children’s rights to receive teaching in

languages other than the nation’s common tongue were

guarded [in Meyer] against the state’s encroachment”). On

the other hand, the right to a “basic, minimum education”

is a right asserted by children, or by parents on behalf

of children. Plyler, 457 U.S. at 221 (“Public education is

not a ‘right’ granted to individuals by the Constitution”)

(emphasis added) (citing San Antonio Indep. Sch. Dist.,

411 U.S. at 35). While the Supreme Court has found that

parents have standing to challenge the education their

children receive, it has never formulated this as a parental

right to a certain education. See Parents Involved in Cmty.

Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719, 127 S. Ct.

2738, 168 L. Ed. 2d 508 (2007) (stating that parents who

challenged Seattle’s race-based school admissions scheme

asserted injury “on behalf of their children”).

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Appendix A

The complaint does not allege any violation of a

parental right. And in their briefing before the district

court, the parents repeatedly disavowed any parentalrights claim. In their supplemental briefing on standing

ordered by that court, the parents argued that they

could assert claims “on behalf of their children.” In their

summary judgment briefing, the parents summarized

their argument, in its entirety, as follows: “Because

Plaintiffs have presented overwhelming evidence showing

that the orders violate their children’s constitutional

and statutory rights, the Court should decline to grant

summary judgment to Defendants . . .” In the same

brief, the parents summarized their aim as “seek[ing]

to vindicate their children’s constitutional rights to due

process and equal protection,” “by contrast” to caselaw

in which a parent sought to “vindicate her own asserted

interest” in the child’s education. The parents could not

have been more clear: they did not bring this case to

vindicate parental rights. And because the Meyer-Pierce

right is a parental right, not a right asserted by a child or

a parent on behalf of a child, I would find that the parents

failed to raise a Meyer-Pierce claim and dismiss this

portion of the appeal.

Underscoring this conclusion is the fact that in the

district court the parents did not distinguish between

the due process rights of public school and private school

children, but rather treated them collectively. That

is, they alleged the violation of an alleged due process

right to a basic minimum education that applied to all

students, whether in public or private school. Tellingly,

when the parents cited the Meyer-Pierce line of cases in

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Appendix A

their district court briefing, they did so only in passing.

Indeed, at one point the parents specifically stated that

“Defendants mischaracterize Plaintiffs as advocating

for a ‘fundamental right to in-person school.’ Plaintiffs’

actual argument is that ‘the Fourteenth Amendment of

the United States Constitution [] protects Californians’

fundamental right to a basic minimum education,’ and

that the Order infringes that right because distance

learning has proved woefully inadequate.” Under all

these circumstances, Plaintiffs clearly did not preserve

a separate claim under Meyer and Pierce.

IV.

Because I would hold that this case is not moot and

affirm the district court on the merits, I respectfully

dissent.

BERZON, Circuit Judge, dissenting:

I join Judge Paez’s dissent in full. In particular, I

agree that the merits of the question whether parents

of children who attend private schools (and only those

parents) have a right to access an in-person education

for their children was waived by the Plaintiffs and is not

properly before this Court. Paez Dissent at 31-33.

The majority of the three-judge panel nonetheless

reached the issue and, relying principally on Meyer v.

Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042

(1923), and Pierce v. Society of Sisters, 268 U.S. 510, 45 S.

36a

Appendix A

Ct. 571, 69 L. Ed. 1070 (1925), held that parents of children

in private school have a substantive due process right to

have their children attend in-person classes, including

during a medical emergency. See Brach v. Newsom, 6

F.4th 904, 927-33 (9th Cir. 2021), vacated, 18 F.4th 1031

(9th Cir. 2021). I write separately to dispel any suggestion

that the waived issue could have possible merit were it to

be raised in a later case.

Meyer struck down a Nebraska statute forbidding

the teaching of any language other than English before

ninth grade as violating the right of a German language

instructor “to teach and the right of parents to engage

him so to instruct their children.” 262 U.S. at 396-97,

400, 403. By completely prohibiting a substantive topic of

instruction—foreign languages—the statute “interfere[d]

with the calling of modern language teachers, with the

opportunities of pupils to acquire knowledge, and with

the power of parents to control the education of their

own.” Id. at 401. Two years later, Pierce struck down an

Oregon law requiring parents to send their children to

public schools. 268 U.S. at 529-31. The Court held that

the statute “unreasonably interfere[d] with the liberty

of parents and guardians to direct the upbringing and

education of children under their control,” reasoning

that the law’s “inevitable practical result . . . would be

destruction of appellees’ primary schools, and perhaps all

other private primary schools” in the state and that the

state did not have the power “to standardize its children

by forcing them to accept instruction from public teachers

only.” Id. at 534-35.

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Appendix A

The holdings of Meyer and Pierce were limited to

protecting two rights: the right of parents to choose

private rather than public school and the right of those

private schools to teach subject matter above and beyond

whatever basic curriculum the state may prescribe. To that

degree, parents have the right “to control the education

of their own,” Meyer, 262 U.S. at 401, and “to direct the

upbringing and education” of their children, Pierce,

268 U.S. at 534-35. But the two cases’ limited holdings

had nothing to do with the state’s power otherwise to

regulate the conditions under which schools provide that

knowledge, let alone the state’s power to enforce generally

applicable public health laws.

To the contrary, Meyer and Pierce explicitly preserved

the state’s broad powers to adopt regulations concerning

school attendance and “the public welfare.” Pierce, 268

U.S. at 534. Meyer reserved the “power of the state to

compel attendance at some school and to make reasonable

regulations for all schools, including a requirement that

they shall give instructions in English.” 262 U.S. at 402

(emphasis added). Likewise, Pierce emphasized that states

retained the power “reasonably to regulate all schools,”

including “to inspect, supervise and examine them” and

“to require that all children of proper age attend some

school.” 268 U.S. at 534 (emphasis added).

Since Meyer and Pierce, the Supreme Court has

repeatedly confirmed this limited understanding of

the Meyer-Pierce right. Wisconsin v. Yoder, 406 U.S.

205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), reaffirmed

“the power of a State, having a high responsibility for

38a

Appendix A

education of its citizens, to impose reasonable regulations

for the control and duration of basic education,” id. at 213.

Likewise, Norwood v. Harrison, 413 U.S. 455, 93 S. Ct.

2804, 37 L. Ed. 2d 723 (1973), stressed “the limited scope

of Pierce,” which “held simply that while a State may

posit [educational] standards, it may not pre-empt the

educational process by requiring children to attend public

schools,” id. at 461 (quoting Yoder, 406 U.S. at 239 (White,

J., concurring)). And Runyon v. McCrary, 427 U.S. 160,

96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976), emphasized that

“Meyer and its progeny” protected only the private

“schools’ right to operate,” “the right of parents to send

their children to a particular private school rather than

a public school,” and the right to direct (at least to some

degree) “the subject matter which is taught at any private

school,” id. at 177. Echoing Meyer and Pierce, Runyon

observed that 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.” Id. at 178.

California’s suspension of in-person education during

the COVID-19 pandemic falls well outside this “limited

scope” of the Meyer-Pierce right. Id. at 177. Consistent

with Pierce, California’s public health measures permitted

private schools to continue “to exist and to operate,”

Norwood, 413 U.S. at 462, and in no way caused the

“destruction” of private education, Pierce, 268 U.S. at 534.

Nor did California’s actions affect what private schools

may teach; those schools have remained “free to inculcate

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Appendix A

whatever values and standards they deem desirable.”

Runyon, 427 U.S. at 177.

That states enjoy wide latitude to safeguard public

health and welfare is underscored by the Supreme Court’s

decision in Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct.

438, 88 L. Ed. 645 (1944). Prince concerned a challenge to

a Massachusetts law restricting child labor brought by a

Jehovah’s Witness who had assigned her niece, over whom

she had legal custody, to sell religious literature on the

street. Id. at 159-63. The girl’s guardian asserted, along

with a First Amendment free exercise right, “a claim of

parental right as secured by the due process clause of

the” Fourteenth Amendment. Id. at 164 (citing Meyer, 262

U.S. 390). Although Prince recognized both “the parent’s

authority to provide religious” education, id. at 166

(citing Pierce, 268 U.S. 510), and that “the custody, care

and nurture of the child reside first in the parents,” id.,

the Court explained that “the family itself is not beyond

regulation in the public interest,” id. Accordingly, Prince

observed that “the state as parens patriae may restrict

the parent’s control” “to guard the general interest in

youth’s well being” and that the parental rights recognized

in Meyer and Pierce did “not include liberty to expose the

community or the child to communicable disease or the

latter to ill health or death.” Id. at 166-67. And the Court

endorsed the state’s “wide range of power for limiting

parental freedom and authority in things affecting the

child’s welfare.” Id. at 167; see also Yoder, 406 U.S. at

230 (recognizing the state’s power to regulate to prevent

“harm to the physical or mental health of the child or to

the public safety, peace, order, or welfare”). California’s

school closures during a once-in-a-century pandemic fall

40a

Appendix A

well within that “wide range of power” to protect public

health.

Additionally, that technology has only recently

enabled distance learning does not prove that there is a

constitutionally protected right to in-person instruction,

as the panel opinion posited. Brach, 6 F.4th at 929. In

this regard, the panel opinion’s reliance on “historical

practice and tradition,” id., makes little sense in light of its

simultaneous rejection of any parental right to in-person

education for public school students. To be sure, our cases

recognize that, once parents have chosen public school,

“they do not have a fundamental right generally to direct

how a public school teaches their child.” Fields v. Palmdale

Sch. Dist., 427 F.3d 1197, 1206 (9th Cir. 2005) (quoting

Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395

(6th Cir. 2005)). But the panel opinion did not contend (nor

could it) that the historical fact of in-person instruction

applied only to private schools. It would therefore be

strange to conclude, as the panel opinion did, that students

attending public schools have no fundamental right to

education at all, Brach, 6 F.4th at 922-24, yet historical

practice dictates that students attending private schools

have a fundamental, substantive-due-process based right

to in-person education, in particular.

In short, even if Plaintiffs had brought a Meyer-Pierce

claim in this case, which Judge Paez’s dissent explains

they did not do, Paez Dissent at 31-33, I would conclude

that California’s school closures challenged here did not

violate the important but limited fundamental rights

protected by those cases.

41a

Appendix A

State of California—Health and Human

Services Agency

California Department of Public Health

Tomás J. Aragón, M.D., Dr.P.H.

State Public Health Officer & Director

GAVIN NEWSOM

Governor

April 6, 2022

TO: All Californians

SUBJECT: COVID-19 Public Health Guidance for K-12

Schools in California, 2021-22 School Year

Related Materials: Group-Tracing Approach to Students

Exposed to COVID-19 in K-12 Setting | 2021-2022 K-12

Schools Guidance Q&A | CDPH Guidance for the Use

of Face Coverings | K-12 Schools Testing Framework

2021-2022 (PDF) | Safe Schools for All Hub | American

Academy of Pediatrics COVID-19 Guidance for Safe

Schools | More Languages

Updates effective as of April 6, 2022:

• Section 7 (regarding exposure management) has been

updated. Sections 8-9 have been retired.

The following guidance is designed to keep California K-12

schools open for in-person instruction safely during the

42a

Appendix A

COVID-19 pandemic, consistent with the current scientific

evidence. The foundational principles are ensuring access

to safe and full in-person instruction for all students and

keeping equity at the core of all efforts described below.

In-person schooling is critical to the mental and physical

health and development of our students.

COVID-19 has impacted children in both direct and

indirect ways, and California’s response to conditions

in schools has adapted to the dynamic challenges of the

pandemic, based on humility and the evolving scientific

understanding of the virus. To-date during the 202122 school year, the state has weathered two COVID-19

surges while prioritizing the safety of students and staff

and in-person instruction. Hospitalizations for COVID-19

(including pediatric hospitalizations) and disruptions to

in-person learning, although never inconsequential, have

been substantially lower in California than in comparable

states. As the most recent surge wanes and we collectively

move forward, the next phase of mitigation in schools

focuses on long-term prevention and our collective

responsibility to preserve safe in-person schooling.

SARS-CoV-2, the virus that causes COVID-19, is

transmitted primarily by inhalation of respiratory

aerosols. To mitigate in-school transmission, a multilayered strategy continues to be important, including but

not limited to getting vaccinated, wearing a mask, staying

home when sick, isolating if positive, getting tested, and

optimizing indoor air quality.

COVID-19 vaccination for all eligible people in California,

including teachers, staff, students, and all eligible

43a

Appendix A

individuals sharing homes with members of our K-12

populations is crucial to protecting our communities. More

information on how to how to promote vaccine access and

uptake is available on the California Safe Schools Hub and

Vaccinate All 58 - Let’s Get to Immunity.

On February 28, 2022, California announced that, based

on a review of epidemiologic indicators and modeling

projections, the universal indoor mask mandate in

K-12 school settings would transition to a strong

recommendation after March 11, 2022.

Source: 2/28/22 CalHHS Press Conference

Masks remain one of the most simple and effective safety

mitigation layers to prevent transmission of SARS CoV-2.

High quality masks, particularly those with good fit and

filtration, offer protection to the wearer and optimal

source control to reduce transmission to others. To best

protect students and staff against COVID-19, CDPH

currently strongly recommends continuing to mask

indoors in school settings.

44a

Appendix A

CDPH will continue to assess conditions on an ongoing

basis to determine if updates to K-12 school guidance are

needed, with consideration of the indicators and factors

noted below, as well as transmission patterns, global

surveillance, variant characteristics, disease severity,

available effective therapeutics, modeling projections,

impacts to the health system, vaccination efficacy and

coverage, and other indicators.

General Considerations:

The guidance below is designed to help K-12 schools

continue to formulate and implement plans for safe,

successful, and full in-person instruction during the

2021-22 school year. It applies recommendations provided

by the Centers for Disease Control and Prevention

(CDC) and the American Academy of Pediatrics (AAP)

to the California context. The guidance is effective

immediately, unless otherwise stated, and will continue

to be reviewed regularly by the California Department

of Public Health (CDPH). Additional guidance, including

additional requirements, may be issued by local public

health officials, local educational agencies, and/or other

authorities.

This guidance includes mandatory requirements, in

addition to recommendations and resources to inform

decision-making. Implementation requires training and

support for staff and adequate consideration of student

and family needs.

When applying this guidance, consideration should

be g iven to the direct school population and the

45a

Appendix A

surrounding community. Factors include: (1) community

level indicators of COVID-19 and their trajectory; (2)

COVID-19 vaccination coverage in the community and

among students, teachers, and staff; (3) local COVID-19

outbreaks or transmission patterns; (4) indoor air quality

at relevant facilities; (5) availability and accessibility of

resources, including masks and tests; (6) ability to provide

therapeutics in a timely and equitable manner as they

become available; (7) equity considerations, including

populations disproportionately impacted by and exposed

to COVID-19; (8) local demographics, including serving

specialized populations of individuals at high risk of severe

disease and immunocompromised populations; and (9)

community input, including from students, families, and

staff.

In workplaces, employers are subject to the Cal/OSHA

COVID-19 Emergency Temporary Standards (ETS) or

in some workplaces the Cal/OSHA Aerosol Transmissible

Diseases Standard, and should consult those regulations

for additional applicable requirements.

Safety Measures for K-12 Schools

Masks

No person can be prevented from wearing a mask

as a condition of participation in an activity or

entry into a school, unless wearing a mask would

pose a safety hazard (e.g., watersports).

CDPH strongly recommends that all persons

(e.g., students and staff) wear masks in K-12

46a

Appendix A

indoor settings, with consideration of exemptions

per CDPH face mask guidance.

Persons exempted from wearing a face covering due

to a medical condition are strongly recommended

to wear a non-restrictive alternative, such as a

face shield with a drape on the bottom edge, as

long as their condition permits it.

Schools must develop and implement local

protocols to provide masks to students who

inadvertently fail to bring a face covering to

school and desire to use one.

Public schools should be aware of the requirements

in AB 130 (Chapter 44 of the Statutes of 2021) to

offer independent study programs for the 2021-22

school year.

In situations where use of masks is challenging

due to pedagogical or developmental reasons,

(e.g., communicating or assisting young children

or those with special needs), a face shield with

a drape (per CDPH guidelines) (PDF) may

be considered instead of a mask while in the

classroom.

2. Physical distancing

CDPH recommends focusing on the other

mitigation strategies provided in this guidance

47a

Appendix A

instead of implementing minimum physical

distancing requirements for routine classroom

instruction.

3. Ventilation recommendations:

For indoor spaces, indoor air quality should be

optimized, which can be done by following CDPH

Guidance on Ventilation of Indoor Environments

and Ventilation and Filtration to Reduce LongRange Airborne Transmission of COVID-19 and

Other Respiratory Infections: Considerations for

Reopened Schools (PDF), produced by the CDPH

Air Quality Section.

4. Recommendations for staying home when sick and

getting tested:

Follow the strategy for Staying Home when Sick

and Getting Tested from the CDC.

Get tested for COVID-19 when symptoms are

consistent with COVID-19.

Adv ise staff members and students w ith

symptoms of COVID-19 infection not to return

for in-person instruction until they have met the

following criteria:

At least 24 hours have passed since resolution

of fever without the use of fever-reducing

medications; AND

48a

Appendix A

ii.

Other symptoms are improving; AND

iii. They have a negative test for SARS-CoV-2,

OR a healthcare provider has provided

documentation that the symptoms are

typical of their underlying chronic condition

(e.g., allergies or asthma) OR a healthcare

provider has confirmed an alternative named

diagnosis (e.g., Streptococcal pharyngitis,

Coxsackie virus), OR at least 10 days have

passed since symptom onset.

iv. If the student or staff member tests positive

for SARS-CoV-2, follow the guidance for

isolation in Section #10 below.

5. Screening testing recommendations:

CDPH has a robust State- and Federally-funded

school testing program and subject matter

experts available to support school decision

making, including free testing resources to

support screening testing programs (software,

test kits, shipping, testing, etc.).

Resources for schools interested in testing

include: California’s Testing Task Force K-12

Schools Testing Program, K-12 school-based

COVID-19 testing strategies (PDF) and

Updated Testing Guidance; The Safe Schools

for All state technical assistance (TA) portal;

and the CDC K-12 School Guidance screening

49a

Appendix A

testing considerations (in Section 1.4 and

Appendix 2) that are specific to the school

setting.

6. Case investigation and reporting:

Per AB 86 (2021) and California Code Title 17,

section 2500, schools are required to report

COVID-19 cases to the local public health

department.

Schools or LEAs should have a COVID-19

liaison to assist the local health department with

activities related to COVID-19.

Recommendations for Students exposed to COVID-19:

Schools may consider permitting asymptomatic

exposed students, regardless of their COVID-19

vaccination status or location of exposure, to continue

to take part in all aspects of K-12 schooling, including

sports and extracurricular activities, unless they

develop symptoms or test positive for COVID-19. It

is strongly recommended that exposed students wear

a well-fitting mask indoors around others for at least

10 days following the date of last exposure, if not

already doing so.

Exposed students, regardless of COVID-19

vaccination status, should get tested for

COVID-19 with at least one diagnostic test (e.g.,

an FDA-authorized antigen diagnostic test, PCR

50a

Appendix A

diagnostic test, or pooled PCR test) obtained

within 3-5 days after last exposure, unless they

had COVID-19 within the last 90 days.

Exposed students who had COVID-19 within

the last 90 days do not need to be tested after

exposure but should monitor for symptoms.

If symptoms develop, they should isolate and

get tested with an antigen test.

ii.

If the exposed student has sy mptoms

consistent with COVID-19, they should stay

home, get tested and follow the guidance in

Section #4 above.

iii. If the exposed student tests positive for

COVID-19, follow the guidance for isolation

in Section #10 below.

Follow the Group Tracing Guidance for notification

recommendations for exposures that occur in a

school setting.

Sections 8-9 have been retired.

10. Isolation recommendations

Everyone who is infected with COVID-19,

regardless of vaccination status, previous

infection or lack of sy mptoms, follow the

recommendations listed in Table 1 (Isolation) of

the CDPH Guidance on Isolation and Quarantine

for the General Public.

51a

Appendix A

11. Hand hygiene recommendations

Teach and reinforce washing hands, avoiding

contact with one’s eyes, nose, and mouth, and

covering coughs and sneezes among students and

staff.

Promote hand washing throughout the day,

especially before and after eating, after using the

toilet, and after handling garbage or removing

gloves.

Ensure adequate supplies to support healthy

hygiene behaviors, including soap, tissues,

no-touch trashcans, face coverings, and hand

sanitizers with at least 60 percent ethyl alcohol

for staff and children who can safely use hand

sanitizer.

12. Cleaning recommendations

In general, routine cleaning is usually enough

to sufficiently remove potential virus that may

be on surfaces. Disinfecting (using disinfectants

on the U.S. Environmental Protection Agency

COVID-19 list) removes any remaining germs

on surfaces, which further reduces any risk of

spreading infection.

For more information on cleaning a facility

regularly, when to clean more frequently or

disinfect, cleaning a facility when someone is

52a

Appendix A

sick, safe storage of cleaning and disinfecting

products, and considerations for protecting

workers who clean facilities, see Cleaning and

Disinfecting Your Facility.

If a facility has had a sick person with COVID-19

within the last 24 hours, clean AND disinfect the

spaces occupied by that person during that time.

Drinking fountains may be open and used

by students and staff. Routine cleaning is

recommended.

13.

Food service recommendations

Maximize physical distance as much as possible

while eating (especially indoors). Using additional

spaces outside of the cafeteria for mealtime

seating such as classrooms or the gymnasium

can help facilitate distancing. Arrange for eating

outdoors as much as feasible.

Per routine practice, surfaces that come in

contact with food should be washed, rinsed, and

sanitized before and after meals.

There is no need to limit food service approaches

to single use items and packaged meals.

14. Vaccination verification considerations

To inform implementation of prevention strategies

that vary by vaccination status (testing, contact

53a

Appendix A

tracing efforts, and quarantine and isolation

practices), refer to the CDPH vaccine verification

recommendations.

15. C OV I D -19 S a fe t y P l a n n i n g T r a n s p a r e n c y

Recommendations

In order to build trust in the school community

and support in-person instruction, it is a best

practice to provide transparency to the school

community regarding the school’s safety plans.

At a minimum, it is recommended that all local

educational agencies (LEAs) post a safety plan

that communicates the safety measures in place

for 2021-22, on the LEA’s website and at schools

and disseminate the plan to families.

Note: With the approval of the federal American

Rescue Plan, each local educational agency receiving

Elementary and Secondary School Emergency Relief

(ARP ESSER) funds is required to adopt a Safe

Return to In-Person Instruction and Continuity of

Services Plan and review it at least every six months

for possible revisions. The plan must describe how

the local educational agency will maintain the health

and safety of students, educators and other staff.

Reference the Elementary and Secondary School

Relief Fund (ESSER III) Safe Return to In-Person

Instruction Local Educational Agency Plan Template

(PDF).

54a

Appendix A

16. School-Based Extracurricular Activities

The requirements and recommendations in this

guidance apply to all extracurricular activities

that are operated or supervised by schools, and all

activities that occur on a school site, whether or not

they occur during school hours, including, but not

limited to, sports, band, chorus, and clubs.

Indoor mask use rema ins an effective layer

in protecting against COVID-19 infection and

transmission, including during sports, music, and

related activities, especially activities with increased

exertion and/or voice projection, or prolonged close

face-face contact. Accordingly:

• Masks are strongly recommended indoors at all

times for teachers, referees, officials, coaches, and

other support staff.

• Masks are strongly recommended indoors for all

spectators and observers.

• Masks are strongly recommended indoors at all

times when participants are not actively practicing,

conditioning, competing, or performing. Masks

are also strongly recommended indoors while on

the sidelines, in team meetings, and within locker

rooms and weight rooms.

• W h e n a c t i ve l y p r a c t i c i n g, c o n d i t i o n i n g,

performing, or competing indoors, masks are

55a

Appendix A

strongly recommended by participants even

during heavy exertion, as practicable. Individuals

using instruments indoors that cannot be played

with a mask (e.g., wind instruments) are strongly

recommended to use bell coverings and maintain a

minimum of 3 feet of physical distancing between

participants. If masks are not worn (or bell

covers are not used) due to heavy exertion, it is

strongly recommended that individuals undergo

screening testing at least once weekly, unless

they had COVID-19 in the past 90 days. An FDAauthorized antigen test, PCR test, or pooled PCR

test is acceptable for evaluation of an individual’s

COVID-19 status.

Additional considerations or other populations

Recommendations for students with disabilities or

other health care needs

When implementing this guidance, schools

should carefully consider how to address the

legal requirements related to provision of a free

appropriate public education and requirements

to reasonably accommodate disabilities, which

continue to apply.

For additional recommendations for students

with disabilities or other health care needs, refer

to guidance provided by the CDC, AAP, and the

Healthy Kids Collaborative.

56a

Appendix A

2. Visitor recommendations

Schools should review their rules for visitors and

family engagement activities.

Schools should limit nonessential visitors,

volunteers, and activities involving external

groups or organizations with people who are not

fully vaccinated.

Schools should not limit access for direct service

providers, but can ensure compliance with school

visitor polices.

Schools should continue to emphasize the

importance of staying home when sick. Anyone,

including visitors, who have sy mptoms of

infectious illness, such as influenza or COVID-19,

should stay home and seek testing and care.

3. Boarding schools may operate residential components

under the following guidance:

Strongly recommend policies and practices to

ensure that all eligible students, faculty and staff

have ample opportunity to get vaccinated.

Strongly recommend that unvaccinated students

and staff be offered regular COVID-19 screening

testing.

Consider students living in multi-student rooms

as a “household cohort.” Household cohort

57a

Appendix A

members, regardless of vaccination status, do

not need to wear masks when they are together

without non-household cohort members nearby.

If different “household cohorts” are using shared

indoor space when together during the day or

night, continue to strongly recommend mask use,

and healthy hygiene behaviors for everyone.

The non-residential components of boarding schools

(e.g., in-person instruction for day students) are

governed by the guidelines as other K-12 schools, as

noted in this document.

Childcare settings and providers remain subject to

separate guidance.

Originally published on July 12, 2021

California Department of Public Health

PO Box, 997377, MS 0500, Sacramento, CA 95899-7377

Department Website (cdph.ca.gov)

58a

Appendix A

Education Leaders Reaffirm Commitment to Keeping

California’s Schools Open for Safe, In-Person Learning

Published: Dec 22, 2021

SACRAMENTO — Governor Gavin Newsom today

issued the following joint statement by leading education

organizations, including the California State Parent

Teacher Association; California Teachers Association;

California Federation of Teachers; California School

Employees Association; SEIU California; Association

of California School Administrators; California County

Superintendents Educational Services Association;

California School Boards Association; and California

Charter Schools Association:

“Across California, school communities — students,

parents, teachers, staff, administrators and board

members together — have worked tirelessly to keep

schools both safe and in-person. California schools have

been open because of, not despite of, our priority on

safety. As we approach the new year, we reaffirm our

shared commitment to one another, to our parents and

to our students: to keep each other safe and to keep our

classrooms open.”

While California educates over 12% of the nation’s

students, the state accounts for only 0.3% of school

closures nationwide in the 2021-22 school year, according

to the independent site Burbio.

###

59a

Appendix A

www.newsweek.com /despite-stricter-covid-restrictionsc a l i for n i a s - s c ho ol s -r e m a i ne d - op en - a m id - m a s s closures-1667459

Despite Stricter COVID Restrictions, California’s

Schools Remained Open Amid Mass Closures

Katherine Fung ⋮ ⋮ 1/10/2022

News California Coronavirus School Students

While thousands of schools shuttered last week in response

to the latest Omicron wave, California saw relatively few

closures in the same time period despite having stricter

restrictions than other states.

In a weekly update from one of the co-founders of Burbio,

which is tracking K-12 school openings this academic year,

Dennis Roche noted that California had very few closures

over the last few weeks.

Roche told Newsweek that the state has actually kept

schools open at one of the highest rates in the country so

far this academic year.

Last week, school closures on a national level reached

their highest total—a trend driven by rising COVID-19

cases, staffing shortages and the Chicago Public Schools

work action.

Although last week began with 1,591 closures, Burbio’s

tracker identified 5,409 school disruptions by Friday.

Closures were particularly concentrated in the Northeast,

Mid-Atlantic and Midwest.

One of the reason why schools in California have remained

largely unaffected by the mass closures could be a new

60a

Appendix A

law passed by the State Legislature in June—a time when

the state was seeing a decline in infections.

Under the law, superintendents are required to consult

with both the California Department of Education and

their local county office of education before closing their

districts. They would also need to file a plan for how

schools would provide instruction for students missing

time on campus.

Districts that want to be funded during a closure must

show that the disruptions are driven by teacher shortages

and not student absences.

Many schools in California remained open last week as

thousands others on the East Coast shuttered. Above,

cheerleaders from South El Monte High School walk past

the first school buses of a new all-electric fleet for the El

Monte Unified High School District on August 18, 2021,

in El Monte, California. Frederic J. Brown/AFP

61a

Appendix A

While Governor Gavin Newsom has been known to

implement tight COVID-19 restrictions—including

universal face masking for indoor settings and vaccine

mandates for health care workers and students—he has

also pushed to keep classrooms across the state open.

Ahead of the winter break, Newsom said, “California

schools have been open because of, not despite of, our

priority on safety. As we approach the new year, we

reaffirm our shared commitment to one another, to our

parents and to our students: to keep each other safe and

to keep our classrooms open.”

But even efforts from the state’s top officials have failed

to keep every student in California on school campuses.

With the rise in infections, some districts have had to

make the decision to close schools.

Last week, the West Contra Costa School District

announced it would close its 54 schools last Friday and

this Monday “to relieve a little pressure and allow more

time for those in our community who are sick to recover.”

The district called it a “very challenging week” for their

school communities and officials noted “we’re seeing a lot

more staff absences than usual due to the virus, and we

also have an increased number of students testing positive

for COVID-19 as we return from winter break.”

Beginning Monday, school staff will be required to wear

KN-95 masks.

62a

Appendix A

The district will also open three new testing sites for the

school communities and distribute 15,000 in-home testing

kits to students before they return on Tuesday.

Update 10/01/21 12:07 p.m. ET This story was updated

with comments from Roche.

United States Court of Appeals for the Ninth Circuit

Office of the Clerk

95 Seventh Street

San Francisco, CA 94103

Information Regarding Judgment and

Post-Judgment Proceedings

Judgment

• This Court has filed and entered the attached

judgment in your case. Fed. R. App. P. 36. Please

note the filed date on the attached decision because

all of the dates described below run from that date,

not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)

• The mandate will issue 7 days after the expiration of

the time for filing a petition for rehearing or 7 days

from the denial of a petition for rehearing, unless

the Court directs otherwise. To file a motion to stay

the mandate, file it electronically via the appellate

ECF system or, if you are a pro se litigant or an

attorney with an exemption from using appellate

ECF, file one original motion on paper.

63a

Appendix A

Petition for Panel Rehearing (Fed. R. App. P. 40;

9th Cir. R. 40-1)

Petition for Rehearing En Banc (Fed. R. App. P. 35;

9th Cir. R. 35-1 to -3)

(1) A. Purpose (Panel Rehearing):

• A party should seek panel rehearing only if one or

more of the following grounds exist:

A material point of fact or law was overlooked

in the decision;

A change in the law occurred after the case

was submitted which appears to have been

overlooked by the panel; or

An apparent conflict with another decision of

the Court was not addressed in the opinion.

• Do not file a petition for panel rehearing merely to

reargue the case.

B. Purpose (Rehearing En Banc)

• A party should seek en banc rehearing only if one

or more of the following grounds exist:

Consideration by the full Court is necessary

to secure or maintain uniformity of the

Court’s decisions; or

64a

Appendix A

The proceeding involves a question of

exceptional importance; or

The opinion directly conflicts with an existing

opinion by another court of appeals or the

Supreme Court and substantially affects a

rule of national application in which there is

an overriding need for national uniformity.

(2) Deadlines for Filing:

• A petition for rehearing may be filed within 14 days

after entry of judgment. Fed. R. App. P. 40(a)(1).

• If the United States or an agency or officer thereof

is a party in a civil case, the time for filing a petition

for rehearing is 45 days after entry of judgment.

Fed. R. App. P. 40(a)(1).

• If the mandate has issued, the petition for rehearing

should be accompanied by a motion to recall the

mandate.

• See Advisory Note to 9th Cir. R. 40-1 (petitions must

be received on the due date).

• An order to publish a previously unpublished

memorandum disposition extends the time to file a

petition for rehearing to 14 days after the date of

the order of publication or, in all civil cases in which

the United States or an agency or officer thereof

is a party, 45 days after the date of the order of

publication. 9th Cir. R. 40-2.

65a

Appendix A

(3) Statement of Counsel

• A petition should contain an introduction stating

that, in counsel’s judgment, one or more of the

situations described in the “purpose” section above

exist. The points to be raised must be stated clearly.

(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R.

App. P. 32(c)(2))

• The petition shall not exceed 15 pages unless it

complies with the alternative length limitations of

4,200 words or 390 lines of text.

• The petition must be accompanied by a copy of the

panel’s decision being challenged.

• A response, when ordered by the Court, shall

comply with the same length limitations as the

petition.

• If a pro se litigant elects to file a form brief pursuant

to Circuit Rule 28-1, a petition for panel rehearing

or for rehearing en banc need not comply with Fed.

R. App. P. 32.

• The petition or response must be accompanied

by a Certificate of Compliance found at Form 11,

available on our website at www.ca9.uscourts.gov

under Forms.

• You may file a petition electronically via the

appellate ECF system. No paper copies are

66a

Appendix A

required unless the Court orders otherwise. If you

are a pro se litigant or an attorney exempted from

using the appellate ECF system, file one original

petition on paper. No additional paper copies are

required unless the Court orders otherwise.

Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)

• The Bill of Costs must be filed within 14 days after

entry of judgment.

• See Form 10 for additional information, available on

our website at www.ca9.uscourts.gov under Forms.

Attorneys Fees

• Ninth Circuit Rule 39-1 describes the content and

due dates for attorneys fees applications.

• All relevant forms are available on our website

at w w w.ca9.uscourts.gov under Forms or by

telephoning (415) 355-7806.

Petition for a Writ of Certiorari

• Please refer to the Rules of the United States

Supreme Court at www.supremecourt.gov

Counsel Listing in Published Opinions

• Please check counsel listing on the attached

decision.

67a

Appendix A

• If there are any errors in a published opinion,

please send an email or letter in writing within

10 days to:

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Evangelista (maria.b.evangelista@tr.com));

and electronically file a copy of the letter via

the appellate ECF system by using “File

Correspondence to Court,” or if you are an

attorney exempted from using the appellate

ECF system, mail the Court one copy of the

letter.

68a

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FORM 10. BILL OF COSTS

Instructions for this form: http://www.ca9.uscourts.gov/

forms/form10instructions.pdf

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Case Name

The Clerk is requested to award costs to (party name(s)):

I swear under penalty of perjury that the copies for

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documents)

69a

Appendix A

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REQUESTED

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70a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT, FILED JULY 23, 2021

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 20-56291

D.C. No. 2:20-cv-06472-SVW-AFM.

MATTHEW BRACH, an individual; JESSE

PETRILLA, an individual; LACEE BEAULIEU,

an individual; ERICA SEPHTON, an individual;

KENNETH FLEMING, an individual; JOHN

ZIEGLER, an individual; ALISON WALSH, an

individual; ROGER HACKETT, an individual;

CHRISTINE RUIZ, an individual; Z.R., a minor;

ADEBUKOLA ONIBOKUM, an individual; BRIAN

HAWKINS, an individual; TIFFANY MITROWKE,

an individual; MARIANNE BEMA, an individual;

ASHLEY RAMIREZ, an individual,

Plaintiffs-Appellants,

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 official capacity as State

Superintendent of Public Instruction of California and

Director of Education of California,

Defendants-Appellees.

71a

Appendix B

March 2, 2021, Argued and Submitted,

Pasadena, California

July 23, 2021, Filed

Appeal from the United States District Court for the

Central District of California.

Stephen V. Wilson, District Judge, Presiding.

Before: Eugene E. Siler,* Andrew D. Hurwitz, and

Daniel P. Collins, Circuit Judges. Opinion by Judge

Collins; Dissent by Judge Hurwitz.

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

* The Honorable Eugene E. Siler, Jr., United States Circuit

Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting

by designation.

72a

Appendix B

to recognize a federal constitutional right to have the

State affirmatively provide an education in any particular

manner, and Plaintiffs have 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 privateschool Plaintiffs, we vacate the district court’s judgment

rejecting their Equal Protection claims and remand for

73a

Appendix B

further consideration in light of the conclusion that the

State’s actions implicate a fundamental right of those

Plaintiffs.

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

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

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parents (collectively, the “private-school Plaintiffs”)

who seek to send their children to private school for inperson instruction. The various Plaintiffs contend that,

as applied to their schools, California’s prohibition on

in-person learning “effectively 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.

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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Appendix B

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 sectors.” See Cal. Exec. Order N-3320 (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.

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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Appendix B

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.

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 Stateimposed 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

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Appendix B

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 stayat-home order “otherwise remains in full effect.” Id.

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

3. A county was placed on the County Monitoring List if it

failed to meet the State’s benchmarks on various measures, such as

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Appendix B

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, this waiver policy was

justified due to the “lower risk of child-to-child or childto-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

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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Appendix B

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 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

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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Appendix B

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 Aug ust 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 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

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Appendix B

(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 Tie

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