[C]onservative lawyer Harmeet Dhillon, who is spearheading the suit against Newsom in federal court claims not only will students' learning outcomes be harmed by remote learning, but that by preventing students from going to school, Newsom is violating their rights under both the Constitution and federal law.This story covers the legal reasoning behind the suit much more fully than anything else I've seen. Yet again, the prestigious constitutional law blogs have offered no equivalent analysis of any of these actions, which is a dereliction."If you have a right under the law, a fundamental right, protected right, and your ability to enjoy that right varies according to some arbitrary criteria like where you live," that is unconstitutional, Dhillon told Fox News in an interview. "So you're living, for example, on the border of a county that is on the bad list. The county next to you, right across the border ... across the street even, is not on that list. The kid in the house across the street gets to have a quality education in-person and you don't."
Specifically, she said, the geographic distinctions made under California's system for opening schools run afoul of the equal protection clause of the 14th Amendment.
Dhillon also claims that California's order violates another concept stemming from the 14th Amendment -- substantive due process. Substantive due process is a complicated, controversial part of constitutional law, which Dhillon defines as the requirement that when the government deprives people of "a fundamental or what they call a quasi-fundamental right, such that, before the government takes away that right, they have to really have a good reason for doing that either subject to intermediate or strict scrutiny." Intermediate and strict scrutiny are two concepts that define under what circumstances and in what ways a government may restrict a person's rights.
The right to education is actually located in the California constitution, Dhillon says, and is also reinforced by previous rulings by the U.S. Supreme Court. And, Dhillon claims, the remote learning provided by school districts just isn't a good enough education to satisfy the rights of California's children.
"If you are a student, you are forced to undergo so-called, air quotes, 'distance learning,'" Dhillon said. "I don't know a single parent or kid ... who can tell me that how that went in the spring even remotely resembl[ed] what they are used to and what they frankly are entitled to under the law."
. . . Dhillon also said she believes Newsom's order violates Title VI of the Civil Rights Act of 1964, which protects people from "discrimination on the basis of race, color, and national origin" in their ability to access educational opportunities. "What we have found with distance learning ... [is] that children from Latino or African-American or even probably some of the immigration Asian populations have much less access to digital learning," Dhillon said. "They also, because of the economic impacts in those communities, have much less ability of the mother or the father to stay home with a kid and help them with distance learning. And they have economic pressures that are sometimes forcing high school students to drop out of school to be able to support their families."
However, the Parable of the Persistent Widow (Luke 18:1-8) offers real-world insight into how such things proceed. Lawsuits have to be just one strategy for pursuing remedies.
