Appeals court allows Beshear to halt in-person classes at Kentucky's religious schools

Louisville Courier Journal

A federal appeals court has upheld Kentucky Gov. Andy Beshear's order halting in-person classes at public and private, religious-based schools amid the COVID-19 pandemic.

The ruling Sunday overturns a U.S. District judge's temporary injunction that would have allowed religious schools to continue having students meet in classrooms.

The U.S. Court of Appeals for the Sixth Circuit said Beshear's executive order halting in-person classes at K-12 schools — public and private — until early January can stand because it also applies to public schools and is a legal response to the COVID-19 emergency.

"As the governor explains, elementary and secondary schools pose unique problems for public health officials responding to the COVID-19 pandemic. Compliance with masking and social distancing requirements is difficult to maintain, and students receiving in-person instruction must, in any event, remove their facial coverings to eat," the ruling stated. "… 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."

In a statement, Beshear said the court "recognized that we must all do our part over the next several weeks to slow this virus."

"While we all want to get our kids back to in-person instruction, the United States Court of Appeals for the Sixth Circuit recognized that doing so now would endanger the health and lives of Kentucky children, educators and families," Beshear wrote. "... To help save more lives and defeat this virus we need everyone to do their part."

The senior counsel at First Liberty Institute, which has represented Danville Christian Academy in its lawsuit against the governor, said more actions could be taken.

“We are disappointed by the Sixth Circuit’s order and are considering whether to seek further relief," First Liberty's Roger Byron said.

Kentucky Attorney General Daniel Cameron, who had joined Danville Christian Academy in the lawsuit, was more direct.

"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," Cameron said in a Sunday morning Twitter post.

Sunday's ruling from a three-judge panel with the Cincinnati-based appellate court reverses the Wednesday night order from U.S. District Judge Gregory Van Tatenhove.

Van Tatenhove had ruled the governor cannot prohibit in-person instruction at any religious, private school in Kentucky that follows "applicable social distancing and hygiene guidelines."

Danville Christian Academy, a Boyle County school that serves more than 200 students in preschool through 12th grade, and Cameron had filed the lawsuit against Beshear for his school-related restrictions.

The school and Cameron, a Republican, argued Beshear was violating the rights of religious-based institutions under the First Amendment, as well as Kentucky's Religious Freedom Restoration Act.

Judge:Beshear can't halt in-person instruction at private religious schools in Kentucky

In the wake of surging COVID-19 cases, Beshear, a Democrat, issued an executive order Nov. 18 requiring all private and public schools in the commonwealth to not hold any in-person classes from Nov. 23 until at least Jan. 4.

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.

On the same day he issued the school-related order, Beshear unveiled new restrictions that apply until mid-December for restaurants, bars, gyms, offices, indoor gatherings, weddings and funerals.

A group of private Christian schools, churches and parents has also sued Beshear for his in-person class restrictions as well as the order limiting indoor social gatherings to eight or fewer people from two households.

That case is also pending before Van Tatenhove.

The group filed an amicus brief Friday with the appellate court in support of Danville Christian Academy, with Marvyille Baptist Church in Hillview among the group members.

Maryville Baptist Church had sued Beshear earlier this year over the governor's previous ban on in-person worship services (which Van Tatenhove later struck down in a separate case).

In May, Maryville Baptist Church's case went to the Sixth Circuit Court of Appeals, which declined to rule at the time on Beshear's ban on in-person worship.

However, the panel in the Maryville case did express support for the Bullitt County church's argument that a statewide mass gathering ban should not apply to in-person worship services.

Fast forward to November, and Van Tatenhove brought up the Maryville case in his decision to rule in favor of Danville Christian Academy, saying Beshear was unfairly preventing religious schools from holding in-person classes.

On Wednesday, the U.S. Supreme Court — which recently increased its conservative majority with the appointment of Justice Amy Coney Barrett — temporarily blocked New York Gov. Andrew Cuomo's restrictions on houses of worship in areas of his state that have been hit hardest by the virus.

But the Sixth Circuit judges wrote because Beshear’s latest order applies to both private and public schools, the Maryville Baptist and New York cases that apply specifically to houses of worship “are therefore distinguishable.”

And the appellate court found that unlike the New York case that went before the Supreme Court, “there is no evidence that the challenged restrictions” in Kentucky “were ‘targeted’ or ‘gerrymandered’ to ensure an impact on religious groups.”

In court filings this week, attorneys for the governor's office reiterated their arguments that Beshear was taking necessary steps to try to limit the spread of COVID-19 as a third wave of new cases hit Kentucky.

More than 3,000 daily cases have been seen several days, along with several dozen more virus-related deaths.

Hospital officials have warned of fewer beds for patients and pleaded for communities to take precautions to prevent the spread of COVID-19.

More:Bracing for COVID surge, Louisville hospitals plead for community to stay safe

On Sunday, Kentucky saw 2,803 new cases and 11 more deaths, with 176,925 total cases and 1,896 deaths reported this year.

In the past week, 900 students and 527 staff from Kentucky's K-12 schools tested positive for COVID-19, with more than 5,200 students and 944 staff needing to self-quarantine, according to a state dashboard that relies on self-reported school data.

Danville Christian Academy had not reported any data to the state's COVID-19 dashboard, but a separate Kentucky Department for Public Health spreadsheet that receives data from local health departments showed four students and one staff member at the school have tested positive since the pandemic.

Beshear and his legal team have pointed to the Kentucky Supreme Court, which unanimously upheld the governor's authority earlier this month to issue executive orders in a public health emergency.

Sunday's ruling means Danville Christian Academy cannot move forward with its plans to welcome back students and staff to classrooms Monday following the Thanksgiving break.

Earlier this month, the bishops of the four Roman Catholic dioceses in Kentucky said they would follow Beshear's order and have schools pause in-person classes until early January.

Archdiocese of Louisville spokeswoman Cecelia Price said Joseph Kurtz, archbishop of the Louisville diocese, had been in contact with staff members in support of virtual classes.

"Yesterday, Archbishop Kurtz wrote to pastors and school leaders reiterating the strong recommendation from Nov. 13 for archdiocesan Catholic schools to move to non-traditional instruction beginning this week and through January 8," Price said Saturday. "Thus, there is no change in our plans."

The three judges who took part in Sunday's ruling were John Rogers and Helene White, who were appointed by former President George W. Bush, and Karen Nelson Moore, an appointee of former President Bill Clinton. Rogers is from Lexington, while White is from Detroit and Moore is from Cleveland.

This story will be updated.

Reach Billy Kobin at bkobin@courierjournal.com.