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Law & Courts

Federal Appeals Court Lifts Block on Kentucky School Closure Order

By Mark Walsh — November 29, 2020 3 min read
In this Wednesday, Sept. 23, 2020, file photo, Kentucky Governor Andy Beshear addresses the media in Frankfort, Ky. Kentucky's governor said Sunday, Oct. 11, that he will quarantine after a member of his security detail who drove with his family the day before later tested positive for COVID-19. Democratic Gov. Andy Beshear said he and his family feel fine, show no coronavirus symptoms and have tested negative for the virus.

A federal appeals court on Sunday lifted an injunction issued by a lower court that would have allowed private religious schools in Kentucky to reopen despite recent orders by Gov. Andrew G. Beshear to stop all in-person instruction to battle a resurgence of COVID-19.

On the eve of a new school week, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled unanimously for the Democratic governor and against Danville Christian Academy and Republican Attorney General Daniel Cameron.

The appeals court said the religious school was unlikely to prevail on a claim that the governor’s order violates its First Amendment right to free exercise of religion.

“We are not in a position to second-guess the governor’s determination regarding the health and safety of the commonwealth at this point in time,” the 6th Circuit court said in Commonwealth of Kentucky v. Beshear, a case caption that highlights the surprising legal and political battle lines during the pandemic.

The governor’s Nov. 18 executive order “applies to all public and private elementary and secondary schools in the commonwealth, religious or otherwise,” the court added. “It is therefore neutral and of general applicability and need not be justified by a compelling governmental interest.”

The appellate panel held that a federal district court was wrong to issue a preliminary injunction that exempted religious schools from the governor’s order barring in-person instruction. The district court had ruled on Nov. 25, on the eve of the four-day Thanksgiving weekend, that the governor’s order likely violated the religious schools’ free exercise rights. Beshear had immediately sought a stay of the district court’s injunction from the 6th Circuit court.

“The lower court’s order not only immediately impedes the commonwealth’s ability to enact public health measures to protect the public from the spread of COVID-19, but also eviscerates free exercise jurisprudence to call into question any neutrally-applicable public health measure a state would enact to protect children and staff of religiously-affiliated schools,” lawyers for the governor said in a court filing.

Cameron, along with lawyers representing Danville Christian Academy, filed a response that cited the U.S. Supreme Court’s Nov. 25 decision blocking New York Gov. Andrew M. Cuomo’s occupancy limits on church attendance. The high court’s 5-4 decision in Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo blocked the church limits on free-exercise grounds.

“Gov. Beshear ordered the closure of all religious schools in the commonwealth, but continues to allow Kentuckians to gather in many other settings,” said the brief filed by the state attorney general and the Christian school. “While day cares, colleges and universities, movie theaters, gambling parlors, and gyms are open in Kentucky, religious schools are shuttered.”

But the 6th Circuit court pointed out that the governor’s order applies to all public and private K-12 schools, with minor exceptions for home schools.

“The contours of the order at issue here also in no way correlate to religion, and cannot be plausibly read to contain even a hint of hostility towards religion,” the appellate court said.

The 6th Circuit court took note of the Supreme Court’s recent decision in the New York church case, but said that ruling did not help the private religious school challenging Beshear’s order.

“Unlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions [in Kentucky] were targeted or gerrymandered to ensure an impact on religious groups,” the 6th Circuit court said.

The appellate panel said Kentucky was “particularly vulnerable” to the unique problems that COVID-19 poses for schools, “as it leads the nation in children living with relatives other than their parents—including grandparents and great-grandparents, who are especially vulnerable to the disease,” and because “Kentuckians also have high rates of co-morbidities that can lead to severe cases of COVID-19, including heart and lung conditions.”

Beshear issued a statement Sunday that said, “While we all want to get our kids back to in-person instruction, the United States Court of Appeals for the 6th Circuit recognized that doing so now would endanger the health and lives of Kentucky children, educators, and families.”

Cameron, on his Twitter page, said, “We’re disappointed with the Sixth Circuit’s ruling allowing the governor to close religious schools, but we’re already hard at work to take this matter to the United States Supreme Court.”

A version of this news article first appeared in The School Law Blog.

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