thank you your honor may please the court robert dunn appearing for appellants i will try to reserve five minutes for bottom would appreciate the court's insistence on that for the past year your honor defendants have prohibited thousands of schools from offering in person education to millions of california students and as plaintiffs uncontroverted declarations made clear the experiment with distance learning has been an educational disaster for their children and the evidence on the record similarly demonstrates that hundreds of thousands of other children most underprivileged backgrounds minorities similarly been deprived of even a basic minimum education can i can i ask you a question on that point reviewing the complain and the decorations collectively some of them i made no showing as to even one type of school they go to and so i'm going to sure if we were to conclude that there's a showing so i assume that those are just gone if we were to conclude that it matters i was coolly go to yes if you were to conclude which to which type of school it mattered for each plaintiff some of the declarations are not specific as constitutional right to education because i know you have alternative arguments but at least to me that's the st issue tell me why we should be the st court other than i guess th eventually vacated the decision to find a federal constitutional right to education absolutely yes in our view there is a federal fundamental right to a basic minimum education as we presented in the briefs are our basic  th amendments essentially every state recognized that congress required states to essentially have public education for readmission into the union and since that time the supreme court has increasingly recognized the importance of education or is it fair to say that the supreme court's increasingly either said we don't have such a riot or we don't need to decide today whether we have one israeli supreme court case that recognizes its fundamental right to education status to same sex couples and but i don't read it as saying you must have a status of marriage and that's what the analogy concerns me because i'm not sure i read the th amendment as saying you must have public education but if you do you you can't discriminate and so why is that reading wrong well i would point you to justice thomas dissent in that case the you know i think his reading of the opinion his basic disagreement with the opinion is that this the court is requiring states to provide benefits so it's interpreted the majority opinion not it fair enough and i guess justice marshall's dissent in one of the other cases it says despite what you say there is a fundamental right to education this is something we might specific that although the plaintiff in that case did assert our rights to a basic minimum education but that wasn't being deprived and so the court really had no reason to decide whether or not the court not all the way to that holding they what the court says is there's no fundamental right to education it basically sort of broadly such that any modification with it needs to be a likable to strict scrutiny and we don't contest that such that you know katter moss wasn't subject to strict scrutiny because even though you know there was education involved you know the busing made may have placed a slight burden on education there was no deprivation of the rights to basic minimum education so i think partly it's a matter of narrowing the scope of the rights we're not really saying is you have a right to it in person education if the california schools were all operating today within person education and it was terrible it was just the worst person education in the world would you have a claim well according to the six circuit panel they got vacated yes of course but the point is this i think it's not it's not in person education per se if the state isn't either quality is the exact same experience remote as they did in person fine that would be a different case our point is this both for our plaintiffs and for hundreds of thousands of other kids for her daughters and thousands of others it's not a class action focused on your plate of it's not a class action i measure article three court whether the level of if it's not the question of being remote as opposed to inverse of how do we measure as an article three court whether the education is being provided to california students falls said you know the math teacher never showed up at any point during the whole spring so there was no math instruction you know does the internet connection provide reliable contact with the school such that any information can be conveyed you know like as a plan to be me and others  have provided evidence that that doesn't happen we have other declarant who said they basically got a couple hours a week of virtual education versus you know seven hours a day in the classroom so you know i don't think you have to get super fine grain on this to see some kids are literally just not being educated at all but if we if we were to rule in your favor presumably we would order california not to reopen schools because you say it's not in person important it's quality that's important and we would have to order them to provide education of a certain quality level and so i'm trying to figure out how we would do that i really like my colleagues they're very smart and able but i'm just local school district and school in the case of private schools and charter schools would have to make this decision for themselves the court doesn't actually have to order the state to affirmatively change anything other than essentially reverting back to the status quo districts that could decide for you know idiosyncratic reasons that in person learning a bill to this day too dangerous to basically be contemplated and they could essentially announce their decision and if that is subject to further challenge you know then the law can develop and we can figure out whether that particular school district has been able to provide a basic minimum education and if not whether it can satisfy strict scrutiny anyway but this court doesn't need to decide that for every school district across the state it's the categorical and which is the problem here provide basic minimum education they're asking this they just stop interfering and they cited  undermine or and here's the ability of the stage to tell people that they can get together in a room and have instruction is subject to rational days yes around or that the the right there right that is set forth in those cases what it says at the state cannot prohibit that the parent under the you know the the liberty interest from friends sending their together and in a room it's really about the choice of private versus public school settings so i mean traditionally an understanding of school would be that students are together but i don't see that as their cases as touching on that particular all scrutiny under the rational basis test but even if even if that even if the answer were different there that's clearly not what's happening here given the strong interests indeed compelling interest some cases they may already be back in school was in person instruction particularly those who are in the elementary school because of how many waivers granted so that is i mean that is definitely a problem with with the way that  point particularly not in the summary judgment briefing so that was not before the court and it is in fact a different writers quite a difference between the right of an individual student to an education which is what has been grabbed i'm still interested in the factual question can i tell from the complaint whether or not anybody who's or the declarations whether anybody whose child is going to private school has been did i the right to attend in person i believe there are at least one declaration that made say that that they've that there they have at least at unrelated but what's the status of the current orders is are the orders in front of us the extender orders or are there others that have come out in the meantime your honor the orders that are in effect currently have modified somewhat sense the orders that were challenge and that were presented before they district court below because the briefing was completed as of september two thousand and twenty and the subject to very important restriction i mean exceptions when being the elementary waiver process based on the science around you so i understand that i guess i was  is not in the record and and even beyond that some of that plane that's just alleged they lived in los angeles county are in san diego county and attended public schools so it's not clear which  public school they attend and that significant because what what these orders are about is saying when schools can't open or exceptions where they can it doesn't require that a school or district does open when they can and so for instance san diego and during the course of this litigation moved out of the highest tier and schools and districts were able to open even at that middle and high school level so whether in fact  so i just want to get back to what we started with mr dunn isn't the state of california could just simply say gee this education experiment spends fine but it's cost us a lot of money and the heck with it we're not going to provide public public education people are free to send their children to private schools pierce and other cases seems a given that right but we do not want to provide public education any more it's been a lot of course a lot of money and we're not happy with the result alien children and i think that's one say what the state didn't say were just given up on the whole system so i'm still asking the question can the state do away with public education again forgetting what the california constitution says i'm just saying here is a federal constitutional matter i mean as as like a sponsor stands under the federal constitution it appears that it could however of course that is nowhere near the case here with it where they must think there's some sort of fundamental constitutional right to it there is not a fundamental constitutional right under the th amendment to an education or to a minimum education that has ever been recognized so  state and over fifty thousand so the state has had to take an approach to protect the public health and safety of its people from this unprecedented and so it's different states have irrespective of what the court ultimately decides you know with regards to fundamental rights and whether you know to be the st court to recognize a fundamental right we think is beyond dispute that education is the fundamental or at least so important that typical rational basis cannot apply so in plyler you know the dissenters described it is as creating a quasi fundamental right again sometimes helpful to see how the dissent characterizes the majority in one of the district court opinions that we there and that's that's the way the district court case you cite describes the cases that do it with bite cases involving some sort of discrimination plier it was you're an alien child you're going to get any education at all not the right to have a bus for free not the right to have the schools spend a same amount of money on on your school as somebody else's school the core right to a basic minimum education that's that's what rational but kicks in when that right  education and it's always been rather this fundamental as the commercials say yeah i tend to agree with that you know literacy math you know basic history these types of things again all stuff that can be worked out in future cases whereas here if you just have essentially a blanket denial of in person education that is preventing kids from being educated meaningfully at all in any subject you don't have to decide that now to pivot quickly i realise that there is there is an issue with the miers appears arguments and preservation judge survive a motion to dismiss on that you go to summary judgment and i see one mention of the peterson case it in the midst of an extensive and i must say very well written  say we have a special right as private school students to choose our own thanks it's clearly made in the context of how are you doing that there's a fundamental right to public education so put aside your complaint because i think it could be fairly read to make this argument but you get to summary judgment would you oppose it you don't say wait a minute are private school students have a separate argument that everybody else you just cite my are the strength dollars plans to try to fund schools to get them back in person obviously none of that is currently in the record but from our perspective if the issue is moot you know counties have been snapping back and forth between the red the purple sphere since august is the blueprint was announced los angeles county i believe has never left the purple serialist they they go go there today but they've been in purple tear the whole time so schools have never been allowed to open and others as you mentioned  that school wishes to provide in person education the question is whether you can tell what the school intends to provide yeah in other words i guess i suppose you'd have no even if the meier issue were appropriately raise declarations they want to do it away with the state orders i understand that but just you know i always hate to use anecdotal examples but there are lots of private schools in phoenix that are free to reopen they're not ordered by the state not to reopen who have said no we're not going to do it we think it's too dangerous there are others that have so i'm trying to figure out whether any of your clients have in fact been prevented from going to a private school that would offer them st education make sure that my colleagues that have further questions if not i want to thank both sides for their argument briefing and in this case excellent jobs and we will take this case under submission and with that the morning session today will be