Notes 
KELLEN JOHANSEN* 
Parents v. COVID:  
The Core and the Limits of the 
Parental Right to Direct Education 
Introduction ...................................................................................... 424 
I. The Supreme Court Framework ............................................ 427 
A. Origins of Meyer and Pierce .......................................... 428 
B. The Meyer and Pierce Decisions: Vague Articulations
 of the Scope of the Parental Right ................................ 430 
C. Wisconsin v. Yoder: An Intersection Between
 Religious and Parental Rights ....................................... 432 
D. Runyon v. McCrary: A Limit to the Meyer-Pierce
 Parental Right ............................................................... 436 
E. Troxel v. Granville: Lack of Consensus on the
Standard of Review ........................................................ 438 
II. A Principle for Articulating the Edges of the Parental
Right to Direct Education ...................................................... 440 
III. Review of Brach v. Newsom ................................................. 442 
A. The Vacated Ninth Circuit Majority Opinion ................ 443 
B. Evaluating the Panel Majority’s Novel Substantive
Findings ......................................................................... 447 
Conclusion ....................................................................................... 449 
* J.D. Candidate, 2023, University of Oregon School of Law; B.A., 2018, Linfield
University. Articles Editor, Oregon Law Review. The author thanks Professor Stuart Chinn 
for his invaluable guidance throughout the process of writing this Note. The author also 
expresses gratitude to the editors of the Oregon Law Review for their hard work in bringing 
this Note to Publication. 
[423] 
424 OREGON LAW REVIEW [Vol. 101, 423 
INTRODUCTION 
I n the 1905 case Jacobson v. Commonwealth of Massachusetts, the U.S. Supreme Court upheld a defendant’s conviction under a 
Massachusetts compulsory vaccination statute.1 Because a state’s 
police power embraces reasonable regulations to protect public health 
and safety,2 and since an individual’s liberty interest is necessarily 
subject to the common good,3 Massachusetts could constitutionally 
compel vaccination for the protection of public health and safety from 
the spread of smallpox.4 Thus, a state’s power to guard itself against 
imminent emergencies is not limited in every case by an individual’s 
willingness to submit to reasonable public health regulations, 
notwithstanding the Fourteenth Amendment.5 
In 1923, and then again in 1925, the Court articulated the seemingly 
unrelated right of a parent to control the upbringing of his or her child. 
First, in Meyer v. Nebraska, the Court overturned a private school 
teacher’s conviction under a statute banning instruction in a language 
other than English.6 Two years later, in Pierce v. Society of the Sisters 
of the Holy Names of Jesus and Mary, the Court affirmed an injunction 
against an Oregon statute imposing misdemeanors against parents of 
children who did not attend public school.7 The Court’s rationale in 
both cases rested on the parental liberty right, located in the Due 
Process Clause, to direct the upbringing of one’s child.8 In Meyer, this 
liberty interest protected the parents’ right to engage the defendant to 
teach their child in German.9 In Pierce, the liberty interest protected 
parents’ ability to choose whether to send their children to a Catholic 
school.10 Thus, a state’s power to regulate parental choices is 
sometimes limited by the Fourteenth Amendment.  
Nearly a century later, the COVID-19 pandemic was the impetus for 
a clash between these two constitutional principles. Following the onset 
of the pandemic in 2020, California announced a series of executive 
1 Jacobson v. Massachusetts, 197 U.S. 11 (1905). 
2 Id. at 25. 
3 Id. at 26. 
4 Id. at 39. 
5 Id. at 29–30. 
6 Meyer v. Nebraska, 262 U.S. 390 (1923). 
7 Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925). 
8 Id. at 534–35; Meyer, 262 U.S. at 399–400. 
9 See Meyer, 262 U.S. at 399–400. 
10 See Pierce, 268 U.S. at 534–35. 
2023] Parents v. COVID:  425 
The Core and the Limits of the Parental Right to Direct Education
measures to control the spread of COVID-19.11 Some of these 
measures applied specifically to K–12 schools.12 In general, these 
regulations mandated that both public and private schools shift to 
online education when certain objective criteria showed spread of 
COVID-19 in the “local health jurisdiction” where the schools were 
located.13 In-person education could resume if benchmarks showed 
reduced spread of COVID-19 for fourteen consecutive days, reopened 
schools could remain open regardless of future outbreaks, and there 
was a waiver process for some elementary schools.14 Nonetheless, the 
orders effectively required some public and private schools to teach 
remotely for an extended period.  
In the subsequent case of Brach v. Newsom, fourteen parents and one 
student challenged these actions with equal protection and substantive 
due process claims in federal court.15 Some parents had children 
attending public school, and some parents had children attending 
private school.16 The district court granted summary judgment to the 
State.17 On July 23, 2021, however, a panel of three Ninth Circuit 
judges reversed in part.18 
11 EXEC. DEP’T, STATE OF CAL., EXECUTIVE ORDER N-33-20 (Mar. 19, 2020) 
[hereinafter EXECUTIVE ORDER N-33-20], https://covid19.ca.gov/img/Executive-Order-N 
-33-20.pdf [https://perma.cc/V5XJ-8UJT] (stay home order); EXEC. DEP’T, STATE OF CAL.,
EXECUTIVE ORDER N-60-20 (May 4, 2020) [hereinafter EXECUTIVE ORDER N-60-20],
https://www.library.ca.gov/wp-content/uploads/GovernmentPublications/executive-order
-proclamation/40-N-60-20.pdf [https://perma.cc/Q256-MWFV] (initial tiered reopening
roadmap); CAL. DEP’T OF PUB. HEALTH, ORDER OF THE STATE PUBLIC HEALTH OFFICER
(May 7, 2020), https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20
Library/COVID-19/SHO%20Order%205-7-2020.pdf [https://perma.cc/U3D3-CZ4Z]
(announcing intent to “progressively designate sectors, businesses, establishments, or
activities that may reopen with certain modifications, based on public health and safety
needs”); see also Brach v. Newsom, 6 F.4th 904, 911–15 (9th Cir. 2021), vacated and reh’g
granted en banc, 18 F.4th 1031 (9th Cir. 2021).
12 See, e.g., CAL. DEP’T OF PUB. HEALTH, COVID-19 AND REOPENING IN-PERSON 
LEARNING FRAMEWORK FOR K-12 SCHOOLS IN CALIFORNIA, 2020-2021 SCHOOL YEAR 
(July 17, 2020) [hereinafter REOPENING FRAMEWORK], https://www.smcoe.org/assets 
/files/Alert_FIL/Schools%20Reopening%20Recommendations.pdf [https://perma.cc/272Q 
-QYU9]; CAL. DEP’T OF PUB. HEALTH, COVID-19 INDUSTRY GUIDANCE: SCHOOLS AND
SCHOOL-BASED PROGRAMS (August 3, 2020) [hereinafter INDUSTRY GUIDANCE],
https://files.covid19.ca.gov/pdf/guidance-schools.pdf [https://perma.cc/X9J5-PTN5].
13 REOPENING FRAMEWORK, supra note 12. 
14 Id. 
15 Brach, 6 F.4th at 909. 
16 Id. at 910. 
17 Id. 
18 Id. at 909–10. 
426 OREGON LAW REVIEW [Vol. 101, 423 
Over a dissent, a two judge majority reversed on the private school 
plaintiffs’ equal protection and substantive due process claims.19 
Finding that the parental right derived from Meyer and Pierce20 
protected the private school parents’ discretion to choose in-person 
education for their children, the majority applied strict scrutiny to their 
claims.21 However, since the court did not find a due process right to 
a public school education,22 the public school plaintiffs received 
rationality review and their claims were rejected on appeal.23 Thus, 
according to this panel, the state’s ability to regulate an individual’s 
liberty in the face of a public health emergency is subordinate to the 
parental right to choose an in-person setting for his or her child’s 
private school education.  
On December 8, 2021, the Ninth Circuit vacated the panel’s decision 
and granted en banc review.24 Then, on June 15, 2022, the Ninth Circuit 
issued a new decision, en banc, finding the case moot but neglecting to 
address the vacated opinion’s substantive arguments.25 Unlike the en 
banc majority, this Note attempts to address the panel’s conclusions on 
the merits. 
My first objective is to articulate a framework for distinguishing 
state regulation like that at issue in Brach from the kinds rejected in 
cases like Pierce and Meyer. In short, I argue that the primary harm 
from which the Meyer-Pierce right defends is state-mandated 
indoctrination of values over the objection of a parent. Thus, the Court 
is more likely to strike down forms of state education regulation that 
tend to instill values against a parent’s wishes. However, state 
regulation that merely alters the student experience within the parents’ 
19 Id. at 909–10, 934. 
20 Hereinafter the “Meyer-Pierce right” or the “parental right.” In general, this term 
refers to a parent’s substantive due process right to control the upbringing of his or her child, 
as first articulated in Meyer and Pierce. 
21 Brach, 6 F.4th at 931. 
22 Id. at 922; see San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). 
23 Brach, 6 F.4th at 924, 933. 
24 Brach v. Newsom, 18 F.4th 1031 (9th Cir. 2021) (vacating the panel’s decisions and 
ordering rehearing en banc). 
25 See Brach v. Newsom, 38 F.4th 6 (9th Cir. 2022) (en banc). Since the State had issued 
updated guidance lifting all restrictions on school reopening, the en banc majority found that 
the litigation presented “a classic case in which, due to intervening events, there [was] no 
longer a live controversy necessary for Article III jurisdiction.” Id. at 11. Only one judge 
fully addressed the panel’s substantive conclusions. See id. at 22–25 (Berzon, J., dissenting). 
In her dissent, Circuit Judge Berzon construed Meyer and Pierce narrowly and thus 
uniformly rejected the panel’s findings with respect to the private school parents’ rights. See 
id. 
2023] Parents v. COVID:  427 
The Core and the Limits of the Parental Right to Direct Education
school of choice—for example, state-mandated change to admissions 
policies—falls outside this core of the parental right and is left 
unprotected by Supreme Court precedent. In other words, I argue that 
cases that are similar to Brach, where the regulation does not directly 
effectuate a change in the culture or values passed down by the 
instructors, should be subject to a less rigorous level of review. 
My second objective is to scrutinize the vacated Ninth Circuit 
panel’s substantive arguments through the lens of this framework. This 
review focuses on the panel’s treatment of the private school plaintiffs’ 
claim. Ultimately, I conclude that mandating online education on a 
temporary basis does not regulate culture or values in the same way as 
the regulations in Meyer or Pierce and thus falls outside the core of the 
parental right. Therefore, the Ninth Circuit panel erred in applying 
strict scrutiny to the private school plaintiffs’ claim. 
I 
THE SUPREME COURT FRAMEWORK 
This Part puts the Meyer and Pierce decisions into context by 
recounting the historical development of the parental right to control 
the upbringing of one’s child. To understand the import of Meyer and 
Pierce, it is important to first understand the motivations that gave rise 
to the Nebraska and Oregon statutes. Ultimately, these various 
motivations had one thing in common—they sought to use the threat of 
criminal penalties against parents to shape the sociocultural outcomes 
of children. Thus, the most plausible reading of Meyer and Pierce is as 
a rebuke of state-mandated cultural socialization through education, 
either through regulating private school curricula or banning private 
schools altogether. However, both Meyer and Pierce hinted at limits to 
the parental right by expressly recognizing the state’s power to make 
reasonable regulations.26 Beyond this baseline, the language of the 
opinions does not give a clear sense of the scope or level of scrutiny of 
the parental right, or what constitutes a reasonable amount of state 
regulation. 
The Supreme Court returned to the education context and reiterated 
the Meyer-Pierce right several times after the initial decisions. In Yoder 
v. Wisconsin, the Court upheld an Amish parents’ challenge to a
26 See Meyer v. Nebraska, 262 U.S. 390, 402–03 (1923); Pierce v. Soc’y of the Sisters 
of the Holy Names of Jesus & Mary, 268 U.S. 510, 534 (1925). 
428 OREGON LAW REVIEW [Vol. 101, 423 
compulsory school attendance statute.27 In Runyon v. McCray, the 
Court cited Meyer, Pierce, and Yoder, finding that the right to direct 
education did not protect the parental choice to choose a private school 
with racially discriminatory admissions policies.28 Finally, in the 
Court’s most recent guidance, a four Justice plurality in Troxel v. 
Granville struck down a Washington State statute that allowed state 
trial courts to grant visitation to any petitioner on a showing of best 
interests of the child.29 
The actual language in these decisions does not give precise 
guidance. Moreover, none of these cases definitively establish the 
generally applicable standard of review. Considering the lack of clear 
standards, this Part also focuses on the facts and sociohistorical context 
underlying each case. This context gives a useful lens for thinking 
about exactly what the Court sought to protect in Meyer and Pierce, 
and, on the other hand, what kinds of state discretion the Court sought 
to preserve.  
A. Origins of Meyer and Pierce
One way of decoding the meaning behind Meyer and Pierce is to 
understand the statutes that the Justices decided to strike down. Both 
resulted from the efforts of a variety of interest groups, and each 
interest group hoped to use restrictions on education to shape other 
people’s children.  
The driving force behind the English-only statute challenged in 
Meyer was a long-standing desire by some to assimilate culturally 
isolated minority groups.30 The objective of many settlers in the 
Midwest to shape an English-speaking national identity clashed with 
large German, Polish, and Scandinavian immigrant communities.31 To 
maintain their cultural enclaves, these communities often formed 
private religious schools and imported teachers from Europe to instruct 
in German, Polish, Italian, or Czech languages.32 This cultural 
autonomy posed a perceived threat to those who wanted to articulate a 
unified national identity. 
27 Wisconsin v. Yoder, 406 U.S. 205, 207 (1972). 
28 Runyon v. McCray, 427 U.S. 160, 175–77 (1976). 
29 Troxel v. Granville, 530 U.S. 57, 72–73 (2000). 
30 Barbara Bennett Woodhouse, “Who Owns the Child?”: Meyer and Pierce and the 
Child as Property, 33 WM. & MARY 995, 1004 (1992). 
31 Id. 
32 See id. at 1005. 
2023] Parents v. COVID:  429 
The Core and the Limits of the Parental Right to Direct Education
World War I aggravated this conflict and especially inspired hostility 
against German Americans.33 War propaganda and nationalism created 
an anti-German hysteria and invigorated the belief that students 
learning in schools that taught in the German language could not absorb 
American values.34 
As a response, the English language mandate at issue in Meyer 
passed the Nebraska legislature in 1919.35 The statute stated that “[n]o 
person, individually or as a teacher, shall, in any private denominational, 
parochial or public, school teach any subject to any person in any 
language then [sic] the English language.”36 The statute applied to 
teachers of students who had not graduated eighth grade and punished 
violators with a misdemeanor.37 By 1923, thirty-one states had passed 
similar statutes controlling the languages that could be taught either in 
public or in all schools.38 
In addition to the anti-foreign and antinationalist motivations that 
drove Nebraska’s English-only laws, the Oregon ban on nonpublic 
schools at issue in Pierce was also motivated by a mixture of anti-
Catholic sentiment, the belief that religious schools spread Bolshevism, 
and egalitarian populism.39 This coalition of supporters sought to use 
compulsory public schooling for their various purposes—to curb the 
influence of ethnic minority communities over their children, to 
prevent well-off parents from passing on class hierarchy through 
private school, and to stem the teaching of disfavored religions.40 This 
all culminated in Oregon’s Compulsory Education Act, which required 
every parent, guardian, or other custodian having control or custody of 
a child between eight and sixteen to send the child to public school.41 
Failure to do so was punishable as a misdemeanor.42 
Thus, although the statutes in Pierce and Meyer regulated different 
aspects of education, and although the statutes were the result of 
complex social forces, they shared one important commonality: each 
33 Id. at 1009; see also William G. Ross, A Judicial Janus: Meyer v. Nebraska in 
Historical Perspective, 57 CIN. L. REV. 125, 130–31 (1988). 
34 Ross, supra note 33, at 132. 
35 Woodhouse, supra note 30, at 1003–04. 
36 1919 Neb. Laws 1019. 
37 Id. 
38 Woodhouse, supra note 30, at 1003–04. 
39 See id. at 1017–19. 
40 See id.  
41 1923 Or. Laws 9–10. 
42 Id. 
430 OREGON LAW REVIEW [Vol. 101, 423 
was an attempt to use mandatory changes in education as a tool to 
effectuate social and cultural change in the students, regardless of the 
wishes of their parents. The proponents of the English-only statute in 
Meyer sought to use language in school as a tool to break the cultural 
influence of parents and assimilate the children of ethnic minority 
communities. The various proponents of the private school ban in 
Pierce sought to leverage common schooling to prevent children from 
taking on certain class characteristics, religious beliefs, or cultural 
characteristics. Thus, one way to read the Supreme Court’s rebuke of 
these statutes is as a rebuke of their attempt to  
opt education to socialize children without parental consent. 
B. The Meyer and Pierce Decisions:
Vague Articulations of the Scope of the Parental Right 
Despite their status as foundational cases, the actual Meyer and 
Pierce decisions themselves do not clearly articulate the scope of 
the parental right. Apart from establishing, in general terms, both a 
substantive due process liberty interest and a role for state regulation 
of private and public education, the decisions give very little guidance. 
In Meyer, Justice McReynolds first confronted the Nebraska 
English-only statute by noting that “[w]ithout doubt” the liberty 
guaranteed by the Fourteenth Amendment includes the right to “marry, 
establish a home and bring up children.”43 McReynolds proceeded to 
state that education is historically a matter of “supreme importance.”44 
It was important enough that “[c]orresponding to the right of control” 
was the “the natural duty of the parent to give his children education 
suitable to their station in life.”45 However, to practically discharge this 
duty, the opinion suggests that parents must hire qualified people to 
teach their kids.46 Since learning German was not harmful to the 
welfare of the child, and since the accused taught the language in school 
as his occupation, “[h]is right thus to teach and the right of the parents 
to engage him so to instruct their children . . . are within the liberty of 
the amendment.”47 
Thus, the Court established that parents have a liberty interest in 
directing the education of their children. However, apart from noting 
43 Meyer v. Nebraska, 262 U.S. 390, 399 (1923). 
44 Id. at 400. 
45 Id. 
46 Id. 
47 Id. 
2023] Parents v. COVID:  431 
The Core and the Limits of the Parental Right to Direct Education
that the liberty interest exists, and including a brief reference to the 
welfare of the child, McReynolds gave very little indication of the level 
of rigor or the breadth of the right.  
In the absence of guidance, one way to shed light on the right 
articulated in Meyer is through reference to the Court’s rejection to the 
motivations behind the statute that the Court struck down. In response 
to Nebraska’s argument that legislation promoted civil development 
by preventing children from learning foreign languages and values, 
McReynolds conceded that instilling a common language might be 
desirable but found that coercively violating the liberty interest at 
stake was unconstitutional.48 Thus, while the opinion itself sparsely 
articulates the contours of the parental right, McReynolds expressly 
rejected Nebraska’s argument that a state purpose of instilling desirable 
language skills and cultural values in children is a compelling enough 
purpose to override the parental right. This rejection signals that the 
import of the Meyer opinion directly targets state regulation enacted for 
the purpose of instilling values in children. 
However, McReynolds expressly acknowledged a role for the state 
in setting regulations “for all schools.”49 Indeed, the regulations were 
allowed so long as they were “reasonable,” including, for example, 
compelling student attendance.50 However, since Nebraska’s ban on 
non-English instruction had no “reasonable relation” to “any end within 
the competency of the state,” the Court invalidated the statute.51 
In describing an acceptable role for state regulation, McReynolds 
uses the language of rationality review. However, Meyer predated the 
Court’s modern tiered scrutiny. Thus, while McReynolds certainly 
acknowledged a role for state regulation of public and private schools 
at least as intrusive as enforcing penalties on those who do not attend, 
the Court did not definitively adopt a standard of review for claims 
invoking the parental right to control the education of their children.52 
Two years later in Pierce, the Court again relied on the liberty right 
of parents and guardians to direct upbringing of their children.53 
Writing again for the Court, McReynolds asserted that it was entirely 
48 Id. at 401. 
49 Id. at 402. 
50 Id. 
51 Id. at 403. 
52 Margaret Ryznar, A Curious Parental Right, 71 SMU L. REV. 127, 133–37 (2018). 
53 Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 533–
35 (1925). 
432 OREGON LAW REVIEW [Vol. 101, 423 
plain that the ban on nonpublic schools violated the liberty right from 
Meyer.54 Then he proceeded to announce that “[t]he child is not the 
mere creature of the state; those who nurture him and direct his destiny 
have the right, coupled with the high duty, to recognize and prepare 
him for additional obligations.”55 While quotable, the fact that a child 
is not a “creature of the state” does not give clear guidance on what 
level of scrutiny to apply when reviewing state school regulations, or 
for how far a parent’s preferences can go before they are subjected to 
reasonable state regulation. While Pierce does indicate that the parental 
right includes the option to choose between public school and 
nonpublic school options, the opinion leaves the scope of the parental 
right largely undefined. 
Like in Meyer, Pierce expressly left space for state regulation of 
schools. McReynolds claimed that the parties did not question the 
power of the state “reasonably to regulate all schools,” or “to inspect, 
supervise and examine them, their teachers and pupils.”56 Nor did 
McReynolds question the power of the state to compel attendance, 
ensure that teachers are of “good moral character and patriotic 
disposition,” require that certain courses “essential to good citizenship” 
are taught, or to ban lessons that were “manifestly inimical to the public 
welfare.”57 This list of “reasonable” forms of regulation could be read 
broadly as preserving a very assertive role for state regulation in 
education, or more narrowly as a list of actions beyond which the 
state’s action becomes unconstitutional. However, at a bare minimum, 
McReynolds established in Meyer and Pierce that states have some sort 
of role in regulating and supervising both public and nonpublic schools, 
and that this power is tied in some sense to the duty to prevent results 
that are “manifestly inimical to the public welfare.”58 
C. Wisconsin v. Yoder:
An Intersection Between Religious and Parental Rights 
More than forty years after Meyer and Pierce, the Court returned to 
the issue of parental rights in the schooling context. Many take the view 
that the resulting decision in Wisconsin v. Yoder is guidance about the 
right for parents to control the religious upbringing of their children 
54 Id. at 534–35. 
55 Id. at 535. 
56 Id. at 534. 
57 Id. 
58 Id. 
2023] Parents v. COVID:  433 
The Core and the Limits of the Parental Right to Direct Education
more than it is guidance on the scope parental rights in general.59 
However, the underlying conflict in the case accords neatly with the 
historical background of Meyer and Pierce and gives a clear sense of 
the kind of state control over child learning that the Court finds most 
problematic.  
Yoder arose from Amish parents’ challenge to a Wisconsin 
compulsory school attendance statute. The statute required parents to 
send their children to private or public school until reaching age 
sixteen.60 The Amish parents refused to send their fourteen- and 
fifteen-year-old children to public school and were subsequently 
convicted.61 The parents challenged their convictions on freedom of 
religion grounds and the Wisconsin Supreme Court sustained their 
claims.62 The United States Supreme Court affirmed in an opinion that 
weaved together themes of both freedom of expression and parental 
control.63 
Writing for the Court, Justice Burger first emphasized the nature of 
the Amish parents’ concern with compulsory education. Where the 
respondents’ Amish faith relied on informal learning, separation from 
society, and community welfare, modern secondary school taught the 
importance of competition, self-distinction, and social life with other 
students.64 So, requiring secondary school not only put Amish youth in 
an environment antithetical to Amish religious beliefs but also “[took] 
them away from their community, physically and emotionally, during 
the crucial and formative adolescent period of life.”65 The Amish 
parents did not object to elementary school education, however, 
because this schooling did not “significantly expose their children to 
worldly values or interfere with their development in the Amish 
community during the crucial adolescent period.”66 Thus, the crux of 
the parents’ claim, as described by the Court, was that secondary school 
would socialize their children with values and practices that were 
59 See Jay S. Bybee, Substantive Due Process and Free Exercise of Religion: Meyer, 
Pierce and the Origins of Wisconsin v. Yoder, 25 CAP. U. L. REV. 887, 923–26 (1996); 
Susan E. Lawrence, Substantive Due Process and Parental Rights: From Meyer v. Nebraska 
to Troxel v. Granville, 8 J.L. FAM. STUD. 71, 82 (2006). 
60 Wisconsin v. Yoder, 406 U.S. 205, 207 (1972). 
61 Id. at 207–08. 
62 Id. at 213. 
63 See id. at 214, 218, 223–24. 
64 Id. at 210–11. 
65 Id. at 211. 
66 Id. at 212. 
434 OREGON LAW REVIEW [Vol. 101, 423 
antithetical to the Amish parents’ religious beliefs, and this would be a 
violation of both the parents’ right to freely express their religion and 
their right to direct the upbringing of their children.67 The two 
constitutional claims were inextricably linked. 
Burger initially focused his analysis on the respondents’ free 
exercise claims. To except the Amish parents from the statute, Burger 
set up a balancing test between their First Amendment interest in 
freedom of expression and the state’s interest in compelling universal 
school attendance.68 Since the state’s interest in universal compulsory 
education was not absolute,69 Burger found that it was subordinate to 
the parents’ legitimate desire to freely practice their Amish faith.70 
Next, in rejecting the state’s argument that its parens patriae power 
allowed the state to require secondary education regardless of the 
wishes of the parents, Burger built upon the standard set in Pierce and 
Meyer. Burger first framed the dispute as involving “the fundamental 
interest of parents, as contrasted with that of the State, to guide the 
religious future and education of their children.”71 Then, invoking 
Pierce and Meyer, Burger noted that when “the interests of parenthood” 
were “combined with a free exercise claim,” then “more than merely a 
‘reasonable relation to some purpose within the competency of the 
State’ is required to sustain the validity of the State’s requirement under 
the First Amendment.”72 While in theory state regulation could meet 
this higher standard through a showing that parental decisions would 
jeopardize the health or safety of the child or have significant social 
burdens, the Amish exception from the school-attendance statute did 
not raise these concerns.73  
Thus, one interpretation of Yoder is as establishing some form of 
more rigorous review for the subset of parental rights cases that 
intersect with freedom of religion claims.74 However, if this is the case, 
then Yoder’s precedential value in secular assertions of the parental 
right is unclear.75 This is especially true given Burger’s comments 
67 Id. at 213–14. 
68 Id. at 214. 
69 Id. at 215. 
70 Id. at 221–29. 
71 Id. at 232. 
72 Id. at 233 (quoting Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 
268 U.S. 510, 535 (1925)). 
73 Id. at 233–34. 
74 Lawrence, supra note 59, at 82–83, 88–89. 
75 See id.; Bybee, supra note 59, at 923–24. 
2023] Parents v. COVID:  435 
The Core and the Limits of the Parental Right to Direct Education
about the state’s power to impose reasonable regulation on secular 
schools. While on the one hand requiring something “more than merely 
a ‘reasonable relation’” when religious and regular parental rights 
claims intersect,76 Burger also followed Pierce in reiterating the 
principle that states have the power to impose reasonable regulations 
on schools.77 Indeed, during his analysis of the freedom of religion 
claim, Burger acknowledges that “[a] way of life . . . may not be 
interposed as a barrier to reasonable state regulation of education if it 
is based on purely secular considerations.”78 If Yoder’s heightened 
scrutiny applied in all parental control cases, then the state’s power to 
impose reasonable regulations would always be subject to a secular 
parent’s right to opt for a different approach. This would contradict 
Pierce, Meyer, and Burger’s own statements in Yoder. Thus, Burger’s 
heightened scrutiny is limited to a parent’s right to direct the religious 
upbringing of his or her child; Yoder does not directly speak to the 
standard of review in all secular assertions of parental rights.  
However, the import of Yoder does indirectly speak to how the Court 
views the parental right to direct a child’s education, even in the secular 
context. Indeed, the challenge in Yoder was not a large leap from the 
issues in Meyer or Pierce, which reviewed more targeted attempts to 
socialize children of culturally distinct parents. Similar to Meyer and 
Pierce, the Amish parents in Yoder refused to comply with the statute 
because schooling under the state regulation would have instilled 
cultural values to which the parents objected.79 Where the Amish 
culture emphasized community welfare, American secondary school 
taught competition and individual achievement; where Amish culture 
emphasized separation from society, American secondary school 
entailed social life with non-Amish students.80 These complaints 
accord with the German American parents in Meyer, who wanted to 
pass cultural values and linguistic skills to their children where the state 
wanted to instill American values through English instruction.81 They 
are also analogous to the concerns of the Catholic parents in Pierce, 
who wanted to pass on religion in parochial schools but encountered 
76 Yoder, 406 U.S. at 233 (quoting Pierce, 268 U.S. at 535). 
77 Id. at 213. 
78 Id. at 215. 
79 See id. at 210–11. 
80 Id. at 211. 
81 See Lawrence, supra note 59, at 75; Ross, supra note 33, at 132–33; Woodhouse, 
supra note 30, at 1003–12. 
436 OREGON LAW REVIEW [Vol. 101, 423 
state regulation aiming to instill different values through mandated 
public schooling.82 Thus, although Yoder varies in some ways from 
Meyer and Pierce, all three cases support the underlying proposition 
that the harm from which the parental right to direct one’s child’s 
education defends is state-sponsored indoctrination of values to which 
the parent objects. 
D. Runyon v. McCrary: A Limit to the Meyer-Pierce Parental Right
Where Meyer, Pierce, and Yoder considered statutes that would have
exposed children to values to which their parents objected, in Runyon 
v. McCrary the Court considered intervention in schooling that would
not “inhibit in any way the teaching . . . of any ideas or dogma.”83 In
this context, the Court found that the government action did not
implicate the parental right.84
Runyon arose from § 198185 claims by several Black children who 
challenged two secular private schools’ racially exclusionary 
admissions policies.86 Writing for the Court, Justice Stewart first found 
that § 1981 applied to the schools’ discriminatory policies and then 
proceeded to consider the schools’ constitutional defenses.87 
In response to the schools’ freedom of association defense, the Court 
assumed that parents have a First Amendment right to send their 
children to schools that promote the view that racial segregation is 
desirable.88 However, Stewart wrote, the power to exclude racial 
minorities does not follow from this principle.89 Moreover, and more 
82 Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 532 
(1925); see Woodhouse, supra note 30, at 1017–21. 
83 Runyon v. McCray, 427 U.S. 160, 176 (1976) (quoting McCray v. Runyon, 515 F.2d 
1082, 1087 (4th Cir. 1975)). 
84 Id. at 177. 
85 Section 1981 provides in part that “[a]ll persons within the jurisdiction of the United 
States shall have the same right in every State and Territory to make and enforce contracts 
. . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a) (2018). 
86 Runyon, 427 U.S. at 163–65. 
87 Id. at 168–75. 
88 Id. at 176. 
89 Id. The Runyon Court relied on its previous ruling in Norwood v. Harrison to draw a 
distinction between private discrimination on one hand and otherwise protected freedom of 
association on the other: “[A]lthough the Constitution does not proscribe private bias, it 
places no value on discrimination as it does on the values inherent in the Free Exercise 
Clause. Invidious private discrimination may be characterized as a form of exercising 
freedom of association protected by the First Amendment, but it has never been accorded 
affirmative constitutional protections.” Norwood v. Harrison, 413 U.S. 455, 469–70 (1973). 
Thus, the Court in Runyon found that, even if discriminatory admissions policies could be 
2023] Parents v. COVID:  437 
The Core and the Limits of the Parental Right to Direct Education
importantly for parental rights purposes, Stewart noted that the schools 
did not show how disallowing racial exclusion would inhibit their 
ability to teach racially discriminatory ideas or dogma.90 Specifically, 
Stewart wrote that, even if the First Amendment could in theory protect 
race-based admissions policies under some circumstances, in this 
specific instance “there [was] no showing that discontinuance of (the) 
discriminatory admission practices would inhibit in any way the 
teaching in these schools of any ideas or dogma.”91 Thus, the Court 
dismissed the freedom of association defense and indirectly articulated 
a key difference from the regulation in Meyer, Pierce, and Yoder: 
noninterference with the parents’ ability to instill good morals in their 
children.  
Next, Stewart addressed the schools’ parental rights defense. 
Quoting from Meyer, Pierce, and Yoder, Stewart emphasized the 
“limited scope” of the parental right.92 Since the plaintiffs’ claims 
did not challenge the right of the schools to operate, the right of the 
parents to send their children to private school rather than a public 
school, or the subject matter taught at the private school, the § 1981 
challenge “infringe[d] no parental right recognized in Meyer, Pierce, 
. . . [or] Yoder.”93 According to Stewart, the schools “remain[ed] 
presumptively free to inculcate whatever values and standards they 
deem[ed] desirable” and “Meyer and its progeny entitle[d] them to no 
more.”94 
In Runyon, the Court addressed the parental right in the context of a 
statute that did not directly interfere with the parents’ ability to 
literally construed as falling under the First Amendment, in practice the Constitution 
rejected that result. Runyon, 427 U.S. at 176. 
90 Runyon, 427 U.S. at 176.  
91 Id. (quoting McCray v. Runyon, 515 F.2d 1082, 1087 (4th Cir. 1975)). 
92 Runyon, 427 U.S. at 176–77 (quoting Norwood, 413 U.S. at 461).  
93 Id. at 177; see also Norwood, 413 U.S. at 461. Norwood preceded Runyon by three 
years and confronted a similar issue. There, four parents challenged a Mississippi statutory 
program under which the state bought then lent out textbooks to private and public schools 
without consideration for whether the recipient schools maintained racially discriminatory 
policies. In dismissing Mississippi’s parental right defense, the Court construed Pierce 
narrowly: “[T]he Court’s holding in Pierce is not without limits. As Mr. Justice White 
observed in his concurring opinion in Yoder, Pierce ‘held simply that while a State may 
posit [educational] standards, it may not pre-empt [sic] the educational process by requiring 
children to attend public schools.’” Norwood, 413 U.S. at 461 (quoting Wisconsin v. Yoder, 
406 U.S. 205, 239 (1972) (White, J. concurring)). Under this more limited construction, the 
Court found that the parental right did not entitle private-school parents to the benefits of 
the state-run textbook loan program. Id. at 461–62. 
94 Runyon, 427 U.S. at 177 (italics added). 
438 OREGON LAW REVIEW [Vol. 101, 423 
socialize their children through education.95 In doing so, Stewart 
decided to construe the Meyer-Pierce right narrowly.96 One way to 
interpret this change in tenor is the Court marking a limit to the parents’ 
liberty interest to choose whatever set of school policies they wish. 
Where limiting access to nonpublic school, mandating the languages 
used in instruction, and compelling attendance by isolated religious 
groups ran the risk of instilling state-mandated values at the expense of 
the parents’ preferences, the Court found that requiring race-neutral 
admission policies did not. In other words, since forcing the schools to 
consider Black applicants did not invoke the core harm from which the 
Meyer-Pierce right protects—infringement on parents’ ability to 
control the social and cultural upbringing of their children—the 
government could constitutionally foreclose the parents’ choice to 
select a private school that categorically excluded applicants on the 
basis of race. This is a reasonable regulation “fully consistent with 
Meyer, Pierce, and the cases that followed in their wake.”97 
E. Troxel v. Granville: Lack of Consensus on the Standard of Review
Troxel v. Granville, decided in 2000, is the most recent effort by the
Court to address the Meyer-Pierce parental right.98 That case arose in 
the context of a visitation dispute, not in the schooling context. 
However, it is instructive in its failure to establish a standard of review, 
or even a five Justice majority, in an area that is arguably very central 
to the essence of parenting. 
The subject of the Troxel decision was a Washington visitation 
statute that permitted “[a]ny person” to petition the trial court “for 
visitation rights ‘at any time’” and assigned the court the power to grant 
such rights whenever doing so was in the “best interest of the child.”99 
The issue arose when the paternal grandparents of two children 
petitioned a state trial court for visitation rights over the objection of 
the mother.100 The father was deceased, but during his life the 
grandparents saw the children regularly.101 
95 See id. 
96 See id. 
97 Id. at 179 (italics added). 
98 See Troxel v. Granville, 530 U.S. 57 (2000). 
99 Id. at 60 (alteration in original) (quoting WASH. REV. CODE § 26.10.160(3) (2018) 
(repealed 2021)). 
100 Id. at 60. 
101 Id. 
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The Core and the Limits of the Parental Right to Direct Education
The trial court granted the grandparents’ petition, and the mother’s 
appeal eventually reached the Washington Supreme Court.102 There, 
the court construed the statute broadly to mean that the only restraint 
on a trial court’s discretion was whether granting visitation would be 
in the best interests of the child, and that any person could petition the 
trial court for visitation at any time, irrespective of an ongoing custody 
action.103 The Washington court then struck down the statute and held 
that the parental right requires a showing of harm or potential harm 
before the State may overrule parental choices, and that, in any event, 
the best interests standard was an unconstitutionally broad incursion 
into parental rights.104 
Writing for a four justice plurality, Justice O’Connor agreed that the 
statute was an unconstitutional infringement on the parental right but 
did not consider whether harm or potential harm is necessary before the 
State may constitutionally interfere with parental child-rearing 
choices.105 O’Connor argued that the statute permitted the trial court to 
give insufficient weight to the custodial parent’s preferences.106 Since 
the rule required only a mere “best interest” finding to overrule the 
choice of a fit parent, O’Connor found the breadth of the Washington 
statute unconstitutional.107 
Notably, O’Connor repeatedly identified the parental right as 
“fundamental” and, yet, did not identify a standard of review for 
parental rights claims.108 Indeed, apart from Justice Thomas, who 
asserted that he would apply strict scrutiny review to all infringements 
of fundamental rights,109 none of the Justices articulated a standard of 
review for parental liberty interest. In her plurality opinion, O’Connor 
hints at her reason for omitting more precise guidance:  
We do not, and need not, define today the precise scope of the 
parental due process right in the visitation context. . . . [T]he 
constitutionality of any standard for awarding visitation turns on the 
specific manner in which that standard is applied and . . . the 
102 Id. at 61–62. 
103 Id. at 62–63. 
104 Id. at 63. 
105 Id. at 71–73. 
106 See id. at 72–73. 
107 Id. 
108 See id. at 65, 73. 
109 Id. at 80 (Thomas, J., dissenting). 
440 OREGON LAW REVIEW [Vol. 101, 423 
constitutional protections in this area are best “elaborated with 
care.”110 
O’Connor seems to acknowledge that the issues surrounding the 
parental right are extremely complex. She cites Justice Kennedy’s 
dissent, where he states that “a fit parent’s right vis-à-vis a complete 
stranger is one thing; her right vis-à-vis another parent or a de facto 
parent may be another.”111 Thus, O’Connor and the Court’s choice to 
not set a standard of review may be the result of a conscious decision 
that ambiguity is the best alternative in response to a very complex area 
of law.112 
By extension, if the Court is unwilling to set the standard of review 
of the parental right to choose who may and who may not visit a child, 
an area that is arguably core to the essence of parenting,113 then setting 
a universal standard of review for the parental right may be impractical. 
Thus, for our purposes, it makes sense to conceptualize the parental 
right to direct a child’s education as a subset of the much broader 
parental right and this subset as a single subject of judicial review. The 
right of a parent to, in some instances, control the environment where 
his or her child is educated is a singular right within a network of 
related, but distinct, parental liberties. Thus, Troxel suggests that were 
the Court to order heightened scrutiny in the visitation context, that 
decision might bear on the level of rigor in the education context but 
would not necessarily bind the Court to that result. 
II 
A PRINCIPLE FOR ARTICULATING THE EDGES OF THE 
PARENTAL RIGHT TO DIRECT EDUCATION 
While Supreme Court precedent clearly establishes that there is a 
parental right to control some aspects of one’s child’s education and a 
converse state power to reasonably regulate schools, the opinions by 
and large do not articulate in which matters a parent’s choice is entitled 
to deference. In the absence of clear guidance, a rough framework for 
categorizing the kind of harm that the parental right protects against 
would be useful for evaluating the panel’s decision in Brach v. Newsom 
and making predictions about future parental control disputes. This Part 
110 Id. at 73 (quoting id. at 101 (Kennedy, J., dissenting)).  
111 Id. at 100–01 (Kennedy, J., dissenting).  
112 See Ryznar, supra note 52, at 143–44. 
113 See id. at 152–56 (proposing a tiered approach to setting a level of scrutiny for the 
parental right where courts would give issues of parental custody, which she considers core 
to parenthood, the more rigorous review than issues relating to care or control). 
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The Core and the Limits of the Parental Right to Direct Education
attempts to articulate that harm and then draw inferences about the 
kinds of state regulation that would or would not implicate the weight 
of the Court’s precedent. 
The opinions in Meyer, Pierce, Yoder, and Runyon suggest that the 
primary harm from which the parental right to direct one’s child’s 
education defends is state-mandated indoctrination of values over the 
objection of a parent. Thus, the Court is more likely to strike down 
forms of state regulation that tend to instill values against a parent’s 
wishes and less likely to strike down regulation that merely alters a 
student’s experiences in school.  
The Supreme Court’s precedent supports this distinction. In Meyer, 
prejudice and nationalism intersected and resulted in a series of bans 
on non-English languages in private and public schools. Thus, by 
design and in practice, Nebraska’s regulation effectuated assimilation 
of ethnic minority communities by using state-mandated English 
language instruction as a tool to instill national values in children.114 
In Pierce, a coalition of supporters from ideological and religious 
groups sought to use the public school mandate to curb the influence of 
undesirable private schools and instill favorable views instead.115 If the 
law had survived the legal challenge, it likely would have served its 
intended purpose. In Yoder, a statute compelling attendance at school, 
although general in its applicability, was unconstitutional as to the 
parents in an isolated Amish minority who raised concerns that modern 
secondary education would instill cultural values that were antithetical 
to the group’s beliefs.116 In all three cases, parents had credible claims 
that a state requirement would ultimately result in a form of schooling 
that could instill undesirable values in their children. Moreover, in all 
three cases, the Court invoked the Fourteenth Amendment liberty 
interest to protect the minority parents from submitting their children 
to the socializing effects of the statute. Thus, if there is a core to the 
Meyer-Pierce right, it is a parent’s liberty to opt out of regulation that 
would otherwise teach their children undesirable cultural lessons. 
Under this principle, Runyon came out differently because striking 
down the private school admissions policies did not prevent those 
schools from teaching racist dogma. In other words, the state regulation 
merely altered the students’ experiences within their parents’ school of 
114 See discussion supra Section I.A. 
115 See discussion supra Section I.A. 
116 See discussion supra Section I.C. 
442 OREGON LAW REVIEW [Vol. 101, 423 
choice; it did not directly effectuate a change in the culture or values 
passed down by the instructors. While shutting down the school or 
forcing the students to learn in a different language than that of their 
parents might have inhibited this passage of values, compulsory 
integration with minority students against parental wishes did not, or at 
least not to an extent that outweighed the state’s power to set reasonable 
regulations. Thus, the Court construed the parents’ liberty interest 
narrowly and found that the § 1981 challenge did not implicate the 
parental right. 
This core principle of the parental right, weaved throughout the 
Supreme Court’s decisions in Meyer, Pierce, Yoder, and Runyon, also 
has implications for determining the most appropriate standard of 
review. While the Supreme Court has been reluctant to transparently 
choose between heightened scrutiny or rationality review, those 
regulations with the highest risk of forcibly conveying values contrary 
to the parent’s wishes are likely to face a more rigorous standard of 
scrutiny from the Court. Conversely, regulations, like the one in 
Runyon, that merely create a change in schooling without influencing 
the cultural tenor or values conveyed by the instructors are likely to 
face a more limited variation of the Meyer-Pierce right. In her 
investigation of judicial review in parental rights cases, Margaret 
Ryznar suggests that one possible way to determine the appropriate 
level of scrutiny in a given context is to use a “sliding scale” method 
where the level of scrutiny varies depending on how “core to 
parenthood” the asserted right is.117 One could conceptualize the 
Court’s approach to parental rights cases in the educational context in 
a similar way—those regulations that forcibly inhibit or replace cross-
generational cultural/religious exchange will likely be subject to 
something closer to heightened scrutiny, whereas those cases that 
merely tweak the student experience will be subjected to rationality 
review. Using this framework as a starting point, practitioners can 
begin to make sense of the Supreme Court’s parental right precedent in 
the educational context and can begin to make predictions in cases like 
Brach v. Newsom. 
III 
REVIEW OF BRACH V. NEWSOM 
This Part overviews the vacated majority opinion from the July 2021 
Brach v. Newsom decision and then makes a few observations in light 
117 Ryznar, supra note 52, at 147–48. 
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The Core and the Limits of the Parental Right to Direct Education
of the framework articulated in Part II. Although the en banc majority 
disposed of the case on exclusively procedural grounds,118 this 
overview focuses on the substantive issues that the majority’s opinion 
opted to leave unaddressed. Specifically, this analysis focuses on the 
private school parents’ claim and centers on the vacated panel’s novel 
findings that (1) the parental right to direct education protects a private 
school parent’s discretion to select in-person schooling, and 
(2) regulation infringing the parental right is subject to strict scrutiny.
Ultimately, since the California orders changed the student experience
but not the content of the values conveyed, Supreme Court precedent
suggests that the Ninth Circuit panel erred in construing the parental
right broadly in this context and thus decided incorrectly on both issues.
A. The Vacated Ninth Circuit Majority Opinion
The case began when on July 21, 2020, parents of private school 
children, parents of public school children, and one student brought 
equal protection and substantive due process challenges against the 
Newsom administration’s plan to mandate remote instruction under 
certain conditions to slow the spread of COVID-19.119 
The challenged regulations changed over time, but the general 
outlines of the state’s approach to K–12 schools remained consistent. 
Under the initial round of executive actions in the fall and summer of 
2020, all Californians were subject to a stay-at-home order requiring 
them to “to stay home or at their place of residence”120 except as 
provided by less restrictive “criteria and procedures” set by the State 
Public Health Officer.121 Initially, the regulations excepted only K–12 
teachers from the general stay-at-home order for distanced learning.122 
However, on July 17, the California Department of Health issued the 
first framework for determining when schools could deviate from the 
otherwise applicable ban on in-person instruction.123 
Under this new framework, a school could reopen for in-person 
instruction only if the school’s “local health jurisdiction” had not 
118 See Brach v. Newsom, 38 F.4th 6, 15 (9th Cir. 2022). 
119 Id. at 9–10. 
120 EXECUTIVE ORDER N-33-20, supra note 11. 
121 EXECUTIVE ORDER N-60-20, supra note 11. 
122 Brach v. Newsom, 6 F.4th 904, 911 (9th Cir. 2021); see Essential Workforce, 
COVID19.CA.GOV: YOUR ACTIONS SAVE LIVES 16 (Apr. 28, 2020), https://covid19.ca 
.gov/img/EssentialCriticalInfrastructureWorkers.pdf [https://perma.cc/2HPB-388U]. 
123 See REOPENING FRAMEWORK, supra note 12. 
444 OREGON LAW REVIEW [Vol. 101, 423 
appeared on the state’s County Monitoring List during the preceding 
fourteen days.124 If the school’s jurisdiction had been on the state’s 
County Monitoring List and that school had not previously reopened, 
then the regulations permitted only remote education.125 A local health 
jurisdiction fell onto the monitoring list if either “(1) its 14-day case 
rate was over 100 per 100,000 people; or (2) both (i) its 14-day case 
rate was over 25 per 100,000 and (ii) its 7-day testing positivity rate 
was over 8 percent.”126 Once a school reopened under the framework, 
it was not required to close again, even if the school’s county fell onto 
the State’s County Monitoring List for a second time.127 On August 28, 
the State Public Health Officer amended the framework to replace 
the County Monitoring List with “Tier 1” status as the instrument for 
deciding whether schools could resume in-person instruction.128 A 
county fell into “Tier 1” status if either (1) its 7-day case rate was over 
7 per 100,000 people, or (2) its 7-day positivity rate was over 8%.129 
Although the regulations were eventually relaxed over the following 
year, the justiciability of the plaintiffs’ claims stood upon the 
possibility that California would reimplement restrictions on in-person 
learning similar to those imposed in the early months of the 
pandemic.130 Thus, the subsequent policy changes are not crucial to 
understanding the substantive rulings on the parental right.  
First, the majority rejected the public school parents’ substantive due 
process claim. On appeal, the public school plaintiffs argued that the 
state regulations violated a fundamental right to a basic minimum 
education.131 Writing for the majority, Circuit Judge Collins wrote that 
since the Supreme Court has not recognized a fundamental right to 
public education, rationality review was appropriate.132 The lockdown 
measures were rationally related to slowing the spread of COVID-19, 
a compelling governmental purpose under Roman Catholic Diocese of 
124 Id. 
125 Id. 
126 Brach, 6 F.4th at 913. 
127 REOPENING FRAMEWORK, supra note 12. 
128 See CAL. DEP’T OF PUB. HEALTH, STATEWIDE PUBLIC HEALTH OFFICER ORDER, 
AUGUST 28, 2020 (Aug. 28, 2020), https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH 
%20Document%20Library/COVID-19/8-28-20_Order-Plan-Reducing-COVID19 
-Adjusting-Permitted-Sectors-Signed.pdf [https://perma.cc/Z76W-8LK4].
129 Brach, 6 F.4th at 913.
130 See id. at 916–20. 
131 Id. at 922. 
132 Id. at 923–24 (first citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 
(1973); and then citing Pyler v. Doe, 457 U.S. 202, 221 (1982)). 
2023] Parents v. COVID:  445 
The Core and the Limits of the Parental Right to Direct Education
Brooklyn v. Cuomo.133 Thus, according to Collins, the public school 
plaintiffs’ substantive due process claims failed.134  
Second, the majority found that the private school plaintiffs’ 
substantive due process claim succeeded.135 Although both the public 
and private school plaintiffs articulated the same arguments about a 
fundamental right to education,136 Collins construed the private school 
claims as necessarily a challenge to the government’s interference with 
the parents’ choice of a private school forum.137 Thus, according to 
Collins, the private school parents’ claims invoked the Meyer-Pierce 
right.138 
In response to the State’s argument that Meyer and Pierce merely 
protect a parental right to decide where to send one’s children to school 
and do not implicate generally applicable regulation of the “mode” of 
instruction, Collins pointed out that the foreign language ban in Meyer 
was both generally applicable and did not interfere with the parents’ 
ability to enroll their children.139 Thus, Collins concluded that the 
State’s interpretation of the right was too narrow.140  
From this baseline, Collins proceeded to extend the right into new 
territory. Although acknowledging Runyon’s instruction to construe 
Meyer and Pierce narrowly,141 the majority nonetheless found that the 
parental liberty interest “necessarily embraced a right to choose in-
person private school instruction.”142 Whether private school parents 
have a protected liberty interest to avoid having their children educated 
over the internet was undeniably a novel issue before the court. Collins, 
however, reasoned that the “long-understood core of the right—the 
right to choose a private school offering in-person instruction” was 
impliedly embedded in the broader liberty interest recognized in Meyer 
and Pierce.143 Since the advent of instruction over the internet could 
133 Id.; Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020). 
134 Brach, 6 F.4th at 924. 
135 Id. at 931. 
136 See id. at 940–44 (Hurwitz, J., dissenting). 
137 Id. at 925–26. Ninth Circuit precedent holds that the Meyer-Pierce right protects a 
parent’s choice of “educational forum.” Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1207 
(9th Cir. 2005). 
138 Brach, 6 F.4th at 925. 
139 Id. at 928. 
140 Id. 
141 Id. 
142 Id. at 929. 
143 Id. 
446 OREGON LAW REVIEW [Vol. 101, 423 
not remove this preexisting liberty interest for in-person schooling, the 
majority concluded that Meyer and Pierce supported the parents’ 
claims.144  
Breaking new ground for a second time, the majority chose to apply 
strict scrutiny to the State’s COVID-19 regulations.145 Although 
Collins cited Troxel and acknowledged the Supreme Court’s lack of 
definitive guidance on the level of scrutiny applicable to the Meyer-
Pierce right, he rested his decision on the general principle that 
“[g]overnmental actions that infringe upon a fundamental right receive 
strict scrutiny.”146 Thus, at least in situations where the regulation 
deprives “a central and longstanding aspect of the Meyer-Pierce right,” 
Collins concluded that strict scrutiny is appropriate.147 
Relying on Diocese of Brooklyn, the panel majority found that 
California’s K–12 regulations failed to satisfy strict scrutiny.148 First, 
slowing the spread of COVID-19 was a compelling governmental 
purpose.149 However, Collins concluded that California’s regulations 
were not narrowly tailored.150 Analogizing from the Diocese of 
Brooklyn Court’s decision that New York’s ten- and twenty-five-
person capacity limits on indoor religious services were not narrowly 
tailored to stem the pandemic, Collins concluded that prohibiting in-
person instruction “effectively imposed an attendance cap of zero” on 
private schools and was similarly unconstitutional.151 This analysis, 
along with complaints that California’s school closure was “overbroad” 
when compared to COVID-19’s lighter impact on children and other 
jurisdictions’ responses, led the majority to the conclusion that the 
regulations were not narrowly tailored to the goal of stemming the 
pandemic.152 Thus, the court reversed summary judgment on the 
private school plaintiffs’ substantive due process claim.153 
Lastly, relying on its analysis of the substantive due process claims, 
the court rejected the public school plaintiffs’ equal protection claims 
144 Id. 
145 Id. at 931. 
146 Id. (quoting Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1208 (9th Cir. 2005)). 
147 Id. 
148 Id. at 931–33. 
149 Id. at 931; see also Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 
(2020). 
150 Brach, 6 F.4th at 932. 
151 Id. at 931–32. 
152 Id. at 932–33. 
153 Id. at 933. 
2023] Parents v. COVID:  447 
The Core and the Limits of the Parental Right to Direct Education
and remanded the private school plaintiffs’ equal protection claims.154 
The court found that since there is no fundamental right to public 
education, and since there was no evidence of an invidious distinction, 
the public school parents did not have a valid claim.155 However, the 
court remanded the private school equal protection claims for the 
district court to decide in light of the panel’s finding that the California 
regulations violated the fundamental Meyer-Pierce right.156 
B. Evaluating the Panel Majority’s Novel Substantive Findings
The vacated Brach majority’s decision both to construe Meyer and
Pierce as protecting a parent’s right to choose in-person education and 
to apply strict scrutiny to that right is unsupported by Supreme Court 
precedent. Indeed, the issues in Brach are fundamentally different than 
Meyer, Pierce, and Yoder because the latter cases addressed the harm 
of state-enforced exposure to values through the education system. 
Instead, Brach is analogous to Runyon because both cases involved 
government regulation that, to address a societal harm that transcends 
the schooling context, altered the experience of education without 
infringing on a parent’s ability to choose which values to pass onto his 
or her child. Thus, the vacated Brach majority erred in construing the 
Meyer-Pierce value broadly in this context.  
The best starting point for evaluating the parental right in Brach is 
the nature of the harm incurred by the parents. We can ask: is the harm 
more like that of the parents in Meyer, Pierce, and Yoder, or is it 
analogous to the parents’ complaints in Runyon? As discussed above, 
the harm in Meyer, Pierce, and Yoder was that the state regulation 
prevented the parents from choosing a school or curriculum that would 
teach the cultural or religious values that the parents wanted to pass on 
to their children.157 Indeed, in each of these three cases, the parents 
affirmatively objected to the values taught under the state regulations. 
In Runyon, on the other hand, the court explicitly noted that § 1981 did 
not infringe on the parents’ right to select a school that teaches the 
dogma of their choice. More precisely, requiring the private schools to 
consider Black applicants changed the experience of the schooling but 
did not change the values taught in the school.  
154 Id. 
155 Id. 
156 Id. at 933–34. 
157 See discussion supra Part II. 
448 OREGON LAW REVIEW [Vol. 101, 423 
The harm to the parents in Brach is analogous to the parents in 
Runyon. In Runyon, a broadly applicable statute, intended to prevent 
the transcendent harm of racial discrimination, had the collateral effect 
of tweaking the admissions policies of some private schools in a way 
that altered the student experience but not the content of the matter 
taught. In Brach, broadly applicable lockdown measures, intended to 
prevent the transcendent harm caused by the spread of a contagious 
disease, had the necessary effect of changing the mode of education in 
a way that altered the student experience but not the lessons or subject 
matter taught. In both instances, the government sought to regulate a 
pressing and transcendent harm, and in doing so, changed some aspects 
of private school education. Crucially, however, in both instances these 
changes did not inhibit the values, culture, or dogma taught in the 
private schools. Thus, the harm in Brach is like that in Runyon, and the 
correct line of reasoning on these facts would be to follow the guidance 
of the Runyon court and construe the Meyer-Pierce right narrowly. 
By extension, the vacated Brach majority court erred when it 
construed the parental right broadly to encompass the parents’ 
preference for in-person instruction. Like the private schools in 
Runyon, who could still teach dogma despite the change in admissions 
policies, the California private schools could still pass on values 
through online education. Thus, the harm from Meyer, Pierce, and 
Yoder is absent, and the outcome of Runyon should control. 
Similarly, the distinction between Meyer, Pierce, and Yoder on one 
hand and Runyon on the other highlights how the court’s decision to 
extend strict scrutiny to the parental right on these facts is especially 
egregious. Contrary to the panel majority’s declaration that in-person 
education is a “core right” guaranteed by Meyer and Pierce,158 a careful 
reading of the Supreme Court’s precedent shows that the parental right 
is more limited. Indeed, if, as the Brach panel argues, tradition alone is 
enough to elevate any historically common aspect of private education 
to constitutionally protected status under Meyer and Pierce, then the 
private schools in Runyon would have asserted a valid constitutional 
defense since many private schools historically maintained admissions 
policies that discriminated on the basis of race.159 Change in 
158 Brach, 6 F.4th at 931. 
159 See Arthur S. Miller, Racial Discrimination and Private Schools, 41 MINN. L. REV. 
145, 157 (1957) (“[R]acial separation, even in those states where it has not been required, 
has been a fact of life in private education.”); Chris Ford et al., The Racist Origins of Private 
School Vouchers, CTR. FOR AM. PROGRESS (Jul. 12, 2017), https://www.americanprogress 
.org/article/racist-origins-private-school-vouchers/ [https://perma.cc/WPG5-97BQ]. 
2023] Parents v. COVID:  449 
The Core and the Limits of the Parental Right to Direct Education
traditionally common aspects of education is not the harm that Meyer 
and Pierce defend against—state-sponsored indoctrination is. 
If heightened scrutiny is warranted at all in Meyer-Pierce cases that 
arise in the education context, it is in situations like Yoder where the 
particularly isolated and vulnerable Amish minority was subject to a 
compulsory school attendance statute that “carrie[d] with it a very real 
threat of undermining the Amish community and religious practice as 
they [then] exist[ed].”160 Mandated learning over the internet on a 
temporary basis simply does not pose the same magnitude of threat to 
the private school plaintiffs in Brach. 
In sum, the vacated majority in Brach erred on the substance because 
it overextended the guarantees provided by the Meyer and Pierce 
precedents. Those cases preserve a parent’s discretion to select a school 
which will teach preferable cultural and religious values and the 
schools’ related ability to deliver that service; their use outside that 
context is limited. Ignoring this, the vacated Brach majority not only 
read the precedent broadly but forged new ground to protect a wider 
scope of parental preferences and apply a higher standard of review. 
These changes go beyond the Supreme Court precedent and could 
unnecessarily subject the state’s ability to address future health crises 
to the whims of parents who wish to control all aspects of private 
education. Future courts should stick to the established uses of the 
Meyer-Pierce right rather than expanding its scope to address new 
kinds of harm. 
CONCLUSION 
While at first glance the Supreme Court’s interpretations of the 
parental liberty to control the education of children seem like a 
patchwork of generalized platitudes, the nature of harm incurred by the 
parents provides a guide to make sense of the right. Meyer, Pierce, and 
Yoder each upheld the parental right. Each of these three cases also 
addressed a specific kind of harm—the risk that coercive state 
regulation will ultimately teach one’s children values contrary to the 
parent’s cultural or religious preferences. Outside this limited scope, 
the “fundamental” power of the Meyer-Pierce right has held less 
weight with the Supreme Court. The result in Runyon illustrates this 
dynamic.  
160 Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). 
450 OREGON LAW REVIEW [Vol. 101, 423 
Future courts considering invitations to extend the Meyer-Pierce 
right from parties like the parents in Brach should keep at least 
three factors in mind. First, the courts should consider the unique 
circumstances of ethnic minorities, like in Meyer, or religious 
minorities, like in Yoder, where the continuity of the group’s way of 
life may depend on a parent’s ability to engage instructors to teach 
unique cultural or religious traits and conversely to shield his or her 
child from the pressure to conform to mainstream American values. 
Specifically, courts should ask whether the claims brought by the 
private school parents carry the same sort of existential weight.  
Second, future courts should consider the consequences of curtailing 
the parental right too far. This mistake could be especially costly amid 
a wave of book banning by public school boards.161 Thus, to the extent 
that one thinks that parents should have the discretion to engage a 
teacher to instruct on subjects such as race, gender, and sexuality, even 
in jurisdictions where those subjects have otherwise been curtailed by 
a local school board, then perhaps a parental right that protects a 
parent’s preferences for private school instruction in certain cultural 
values is desirable. 
Lastly, future courts should recall that Due Process rights have never 
been absolute. As both Runyon and Brach demonstrate, the liberty 
interests of parents will sometimes inevitably come into conflict with a 
state’s power to confront transcendent threats to public welfare. 
Moreover, as Jacobson held in 1905, sometimes an individual’s liberty 
interest bends to the well-founded need of society. With this in mind, 
even those sympathetic to the Brach parents’ claims must acknowledge 
that the Ninth Circuit panel had the convenience of over a year between 
the outbreak of COVID-19 and the time of its decision to weigh the 
nature of the threat and judge the prudence of the actions taken by the 
state. The district court that adjudicates in the next health crisis may 
161 See Sophie Kasakove, The Fight Over ‘Maus’ Is Part of a Bigger Cultural Battle 
in Tennessee, N.Y. TIMES (Mar. 4, 2022), https://www.nytimes.com/2022/03/04/us/maus 
-banned-books-tennessee.html; Elizabeth A. Harris & Alexandra Alter, Book Ban Efforts
Spread Across the U.S., N.Y. TIMES (Feb. 8, 2022), https://www.nytimes.com/2022/01/30
/books/book-ban-us-schools.html. The upshot of this point is that eroding the constitutional
protections that insulate private schools from heavy-handed government regulation does not
uniformly benefit those who hold conservative or those who hold liberal ideals. Instead, the
impact would be a narrowing of choices for those parents who disagree with the prerogatives
of local and state education regulators, whatever those prerogatives are. Thus, to the extent
that future courts consider policy outcomes when interpreting the parental right case law,
the policy question should be where to draw the line between government regulation and
parental preferences and not which side to pick between a tug-of-war of conservative and
liberal ideals.
2023] Parents v. COVID:  451 
The Core and the Limits of the Parental Right to Direct Education
not have the same convenience of hindsight. It is in part for this reason 
that the Supreme Court has been wise to proceed cautiously in shaping 
the limited scope of the parental right vis-à-vis state regulation of 
K–12 educational institutions. Although the Ninth Circuit en banc opted 
to address this instance on procedural grounds, future courts will have 
the opportunity to avoid the errors in the vacated Brach decision by 
reaffirming a limited Meyer-Pierce right that provides constitutional 
protection from the harms that matter most. 
452 OREGON LAW REVIEW [Vol. 101, 423