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Ninth Circuit:
Churches Challenging Day Care Licensure Fail to State Claim
Opinion Says Institutions, One of Which Suffered Revocation of Preschool Permit in 2021 Over Not Enforcing Mask Mandates, Did Not Show Discrimination in Scheme Exempting Certain Non-Religious Groups
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a complaint filed by three San Diego-area churches, asserting that the regulatory scheme surrounding the California Child Day Care Facilities Act violates the First Amendment, was properly dismissed for lack of standing and for failure to state a claim on which relief may be granted.
Foothills Christian Ministries, Journey Community Church, and The Grove Church filed a complaint in 2022 against then-Director of the California Department of Social Services Kim Johnson and California Attorney General Rob Bonta asserting that they intend to start preschools but object to the requirement that they operate under California’s licensing scheme for day care providers.
Pointing to exemptions applicable to secular child recreational facilities, the plaintiffs assert that the statutory scheme unfairly targets religious institutions for regulation. They also challenge a mandate that they inform enrolling parents of a right to have their children attend spiritual services of their choosing, saying the rule prevents them from requiring students to attend the religious services that are part of their education platform.
In the operative complaint, they point out that Foothills operated a preschool as a church ministry until 2022 when state officials revoked their license after following up on an anonymous complaint, made in September 2021, accusing the school of not enforcing mask mandates on the children, some of whom were as young as two years old.
According to the plaintiffs, the Department of Social Services (“DSS”) also permanently revoked the license of the director of Foothills’ preschool, Tiffany McHugh, barring her from ever working with children again. Based on those and other allegations, they assert:
“Foothills has a sincerely held, faith-based commitment to minister to children. However, Foothills cannot and will not be subject to DSS licensure and regulations due to DSS’ open hostility to Foothills’ preschool ministry.”
After the state filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),
District Court Judge Cynthia A. Bashant of the Southern District of California granted the request, dismissing some claims with prejudice and some with the ability to amend.
Final judgment was entered in favor of the defendants after the plaintiffs declined to file an amended pleading.
Yesterday’s opinion, written by Senior Circuit Judge Andrew D. Hurwitz and joined in by Circuit Judges Eric D. Miller and Jennifer Sung, affirms the judgment but remands with instructions to alter the decree to provide that the dismissal of one claim, on standing grounds, is without prejudice.
Pre-Enforcement Challenge
Noting that the case presents a “pre-enforcement challenge” as Foothills has announced its intent to reopen its preschool and the other plaintiffs have said that they desire to open childcare centers for the first time, Hurwitz said that the churches must show that there is a credible threat that the challenged provisions will be enforced against them.
As to the regulation, found at California Code of Regulations Title 22, § 101223(a), requiring that facilities covered by the act “inform each child’s authorized representative” of the right of a child to “be free to attend religious services or activities of his/her choice,” the plaintiffs argue that the rule violates the Free Exercise Clause because it means that “a religious institution cannot require attendance at…faith-based activities of a pupil enrolled in its school.”
The jurist explained that “the State has explicitly disavowed enforcement of the provision under these circumstances,” and, as such, he concluded that the plaintiffs lack standing to challenge the so-called “religious services provision.”
In a footnote, he pointed out:
“The district court, although finding that Foothills lacked standing to challenge the religious services provision, dismissed this claim with prejudice. Because a ‘dismissal for lack of subject matter jurisdiction is without prejudice,’… the judgment should be amended accordingly on remand.”
Hurtitz wrote:
“Foothills also attacks the Act’s general requirement that it obtain a license in order to run a child day care facility, under the Free Exercise and Establishment clauses. We conclude that it has standing to raise these claims, but that each fails on the merits.”
Likely Enforcement
Acknowledging that “California has already once revoked Foothills’ license for failure to comply with the Act and implementing regulations,” the court declared that “it is likely” that the state “will enforce the general licensure requirement as it is the linchpin of the Act.”
Claiming that their religious beliefs include holding that fit parents are to be respected in making independent choices regarding the rearing of their children, the plaintiffs contend that the statutory scheme conflicts with this value by foreclosing the ability of guardians to send their preschoolers to an unlicensed child care facility.
The plaintiffs assert that the act “treats fifteen comparable secular child day care operations more favorably” than religious institutions by carving them out from the licensure requirement, and so “is not a generally applicable law” as mandated by the First Amendment. They point to the fact that the regulatory system exempts “recreational programs” operated by the YMCA and other similar organizations as proof of the state’s discriminatory application.
Rejecting that assertion, he wrote:
“Foothills contends that the Act’s exemption of ‘recreation programs..’…‘provides a mechanism for individualized exceptions to licensure.’ But this provision only exempts recreation programs from the licensure requirement; it explicitly does not exempt ‘child day care programs conducted by’ the same organizations….And to the extent the Act does allow for some minimal discretion in determining whether an organization operates a recreation program, it is a far cry from the ‘unfettered discretion that could lead to religious discrimination.’ ”
He continued:
“Because the licensure requirement is neutral and generally applicable, rational basis review applies….The [general licensing] requirement easily satisfies that forgiving standard.”
Free Speech Claims
The plaintiffs also challenge the religious services provision on free speech grounds. Addressing this claim, the judge remarked:
“Although Foothills has not identified a history of past prosecution or enforcement,….the State….does not disavow enforcement of the provision. Foothills therefore has standing to bring this claim.”
However, he opined that “[t]his claim fails on the merits,” saying that because the compelled commercial speech requires only the disclosure” of factual, uncontroversial information, the government only need to establish that the mandate is “reasonably related” to a substantial government interest.
Concluding that the notice requirement is “reasonably related” to the state’s substantial interest in protecting children in day care facilities, he commented that “[s]uch a ‘minimal requirement does not interfere with,’ nor ‘threaten to drown out,’ Foothills’ other speech.
Hurwitz declared that the plaintiffs’ other constitutional claims were similarly without sufficient merit. He commented:
“Because ‘corporations and other collective entities’ like Foothills ‘do not enjoy the privilege’ against self-incrimination, the act does not violate the Fifth Amendment….The Sixth Amendment’s ‘Confrontation Clause does not come into play until the initiation of criminal proceedings.’…And while the regulations allow for the assessment of civil penalties,…the complaint only conclusorily states that Foothills ‘must waive’ its ‘Seventh Amendment rights to a trial by jury,’ and Foothills makes no argument before this court that it has been denied such a right….”
The case is Foothills Christian Ministries v. Johnson, 24-4049.
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