DISCLAIMER: that title is mostly tongue-in-cheek trolling. 

What the Ninth Circuit held on July 23, in Branch et. al v Newsom et. al, was that Newsom’s order closing schools because of COVID burdened private school parents’ fundamental rights to decide how they educate their children. It did not, however, burden the rights of any public school children, because the government does not have an affirmative duty to provide education to public school children. Under the Constitution, the state can close public schools whenever it wants. With a little more effort, the plaintiffs could have found a number of federal statutes that require states to provide public educations, but perhaps they wanted to make a point about their rights more than they wanted to win. 

Back to the title of this post: Of course, a small number of poor children are given many-strings-attached scholarships so they can attend some private schools. But mostly, private schools are populated by the wealthy. And of course there are many children of wealthy families attending very fine public schools in California. There are some neighborhoods and cities, however, where most wealthy people send their kids to private school. And nearly all poor children attend public school.

Thus, to some extent, it is true that the Ninth Circuit has, in this decision, deemed that children in private schools have more rights than those in public schools. One might say that the Court merely announced the obvious conclusion that rich people can do things with their money that poor people can’t. While that will always be true, I’d rather live in a world where all children have equal opportunity in some areas of life such as healthcare and, I would submit, education.

The Ninth Circuit’s full opinion is available here: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/23/20-56291.pdf