In Kentucky, the democrat governor just got schooled by a federal judge. His totalitarian order to shut down all public and private schools was just stopped… at least by half.
A federal judge has struck down a portion of Kentucky Gov. Andy Beshear’s executive order requiring private as well as public schools to halt in-person classes until early January amid the latest wave of COVID-19 cases.
U.S. District Judge Gregory Van Tatenhove ruled Wednesday the governor’s order cannot apply to private, religious-based schools across the state because it infringes on their constitutional rights. The order can, however, remain in place for public schools.
“If social distancing is good enough for offices, colleges, and universities within the Commonwealth, it is good enough for religious private K-12 schools that benefit from constitutional protection,” Van Tatenhove wrote in the ruling. “Ultimately, ‘[t]he First Amendment protects the right of religious institutions ‘to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’”
As such, Beshear is “enjoined from enforcing the prohibition on in-person instruction with respect to any religious private school in Kentucky that adheres to applicable social distancing and hygiene guidelines,” according to the ruling.
Crystal Staley, a spokeswoman for Beshear, said his office has already appealed to the Sixth Circuit, will request an emergency stay of the judge’s order and, if necessary, appeal to the U.S. Supreme Court.
“Let’s be clear: lives are on the line, and everyone must do their part to defeat the virus,” Staley said.
Elementary schools not in “red” counties, which average 25 or more new daily coronavirus cases per 100,000 residents, can resume in-person classes Dec. 7 as long as they follow the state’s “Healthy At School” guidance, according to Beshear’s order.
Danville Christian Academy, a Boyle County school that serves 234 students in preschool through 12th grade, and Kentucky Attorney General Daniel Cameron filed their lawsuit against Beshear last week to seek a statewide temporary restraining order for the ban on in-person classes.
The suit, which was filed Nov. 20 in U.S. District Court for the Eastern District of Kentucky, argued Beshear’s executive order violates the First Amendment as well as the state’s Religious Freedom Restoration Act.
Cameron and attorneys for Danville Christian Academy also questioned why private schools following public health guidelines to safely hold in-person classes during the pandemic must close if places like malls, child care centers, offices and movie theaters can remain open.
Attorneys from the Texas-based First Liberty Institute who represented the Danville school argued in-person classes should not have to stop when many religious-based schools are connected to churches that can keep holding in-person worship services.
In addition, they said the Boyle County Health Department noted Danville Christian Academy is “doing it right” by enacting safety precautions for in-person classes.
“The court recognized that Gov. Beshear’s order prohibiting religious schools from holding in-person classes goes beyond his authority and violates the First Amendment,” Roger Byron, senior counsel at First Liberty, said after the ruling. “We are grateful the court restored the rule of law. The CDC has made it clear that students are safest when they are at school, and Danville Christian Academy has implemented extensive safety protocols approved by local health officials.”
Van Tatenhove ruled this summer Beshear could not stop churches from holding in-person worship services during the pandemic.
“We are disappointed but not surprised that Judge Van Tatenhove, for the second time, has refused to acknowledge the U.S. Supreme Court decision that found an action like this is both legal and constitutional,” Staley said Wednesday night.
The new ruling from Van Tatenhove comes about two weeks after the Kentucky Supreme Court had unanimously upheld Beshear’s authority to issue executive orders in a public health emergency.
In a statement tweeted out Wednesday night, Kentucky Attorney General Daniel Cameron approved of the court’s decision, adding that “this is not the first time during this pandemic where religious exercise has been threatened.”
On Nov. 18, Beshear issued the school-related order and unveiled new restrictions that apply until mid-December for restaurants, bars, gyms, offices, indoor gatherings, weddings and funerals.
The governor has said the new orders are necessary to try to stem the third wave of coronavirus cases in Kentucky, which has reported over 160,000 cases of the virus and 1,800 deaths since March.
The governor and his legal team argued the ban on in-person classes is not violating the religious freedoms of private schools because it also applies to public schools.
But Van Tatenhove wrote Beshear’s argument is not consistent with a previous Sixth Circuit opinion this year in a case involving whether Maryville Baptist Church could hold in-person worship in Bullitt County.
“This Court wonders why under this executive order, one would be free to attend a lecture, go to work, or attend a concert, but not attend socially distanced chapel in school or pray together in a classroom that is following strict safety procedures and social distancing,” Van Tatenhove wrote in Wednesday’s ruling.
Several Republican leaders in the General Assembly responded to the new orders by vowing to rein in Beshear and limit his powers with new legislation in early 2021.
Nine additional Christian schools, more than 1,000 parents and Kentucky State Treasurer Allison Ball also filed briefs to support Danville Christian Academy in its suit.
A group of private Christian schools, churches and parents followed the lead of Danville Christian Academy by also suing Beshear for his in-person classes ban as well as the order limiting indoor social gatherings to eight or fewer people from two separate households.
Debates over continuing with in-person classes have taken place around the country and world in recent months.
In Kentucky, all but a few of the state’s 120 counties have been in the “red” zone for their higher case rates per 100,000 residents, with local schools switching to remote learning in response to safety concerns.
“There is ample scientific evidence that Covid-19 is exceptionally contagious,” Van Tatenhove wrote in his ruling. “But evidence that the risk of contagion is heightened in a religious setting any more than a secular setting, or in K-12 schools as opposed to preschools, universities, or colleges, is lacking.”
Supporters of Danville Christian Academy and other schools that seek to continue in-person classes point to comments last week from the director of the Centers for Disease Control and Prevention.
Robert Redfield said during a Nov. 19 White House Coronavirus Task Force briefing that K-12 schools “can operate with face-to-face learning, and they can do it safely and they can do it responsibly.”
“The truth is, for kids K through 12, one of the safest places they can be, from our perspective, is to remain in school,” Redfield said. “And it’s really important that — following the data, making sure we don’t make emotional decisions about what to close and what not to close.”
Van Tatenhove cited Redfield’s comments in his Wednesday ruling, writing Beshear’s executive order “also seems to run counter to CDC recommendations.”