LEXINGTON, Ky. — Kentucky Gov. Andy Beshear succeeded Sunday in getting a federal appellate court to side with him in his order to close religious and other schools during a surge in the coronavirus pandemic.
The 6th Circuit Court of Appeals in Cincinnati granted the Democratic governor's request to shelve temporarily a judge's ruling that would have allowed 17 private Christian schools to reopen their classrooms to in-person instruction. Those schools filed a lawsuit over Beshear's restrictions and won a preliminary injunction Wednesday from U.S. District Judge Gregory Van Tatenhove.
Attorney General Daniel Cameron joined the schools in their lawsuit, and Kentucky Treasurer Allison Ball filed an amicus brief supporting it. More than 1,000 parents also backed the schools' suit.
But the three-member appellate court said Sunday in its seven-page order that Van Tatenholve's preliminary injunction should not have been entered because the schools are unlikely to succeed. Meanwhile, private, like public, schools were allowed to offer virtual instruction.
Beshear, in an email Sunday, said, "The coronavirus is surging across our country and our commonwealth, bringing sickness and death. Fighting back and protecting one another requires a coordinated effort where all Kentuckians do their part.
"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. Almost every county is in the red zone, we have had nearly 10,000 students and staff in quarantine over the past two weeks, our hospitals are on the verge of being overwhelmed and we have lost nearly 1,900 fellow Kentuckians, including health care workers, a teacher and a 15-year-old student. To help save more lives and defeat this virus, we need everyone to do their part."
Cameron, a Republican, said he was disappointed with the appellate court's ruling, "but we're already hard at work to take this matter to the U.S. Supreme Court."
B. Scott Wells, head of school at the K-12 Lexington Christian Academy, which had planned to open classrooms to students Monday, said in a letter to families Sunday that "what this means for Lexington Christian Academy, and our faith-based school peers, is that we are unable to return to on-campus instruction on Monday, November 30, as planned."
"While last night's ruling is disappointing, Lexington Christian Academy appreciates the opportunity to have our concerns heard by the court. We will continue to consult with our fellow Christian schools on next steps of this legal process as each of us strives to serve our communities and their families," said Wells.
Lexington Christian Academy's preschool will return on campus Monday because those students were not at issue in the court cases. Kindergarten through 12th grade students "will return synchronously," through virtual instruction, he said.
House Speaker David Osborne, R-Prospect, said the appellate court ruling is "a setback for those who believe that the Kentucky and United States Constitutions exist to protect the inalienable rights of people from government overreach.
"As the plaintiffs decide what the next step will be, we continue to urge the governor to follow the appropriate process to accomplish the shared goal of helping Kentuckians remain healthy. We ask that he involve stakeholders in making well-informed decisions and disclose what, if any, data was used to support them.
There was no immediate response from Senate President Robert Stivers, R-Manchester, who had praised Van Tatenhove's ruling.
Besides ruling on Beshear's request for a temporary injunction, the appellate court said it is likely to rule that Beshear's order was "neutral and of general applicability" in that all schools were affected.
The appellate court said Beshear's order "applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise; it is, therefore, neutral and of general applicability and need not be justified by a compelling governmental interest."
The court also said there is no "evidence that the challenged restrictions were 'targeted' or 'gerrymandered' to ensure an impact on religious groups."
The appellate court said it was "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 three judges for the appellate court were Karen Nelson Moore, John M. Rogers and Helene M. White.
Beshear signed an order Nov. 18 to limit indoor gatherings and stop in-person classes for all schools from Nov. 20 through Dec. 13.
Over the Thanksgiving holiday, more than 1,500 parents and 20 religious schools from across Kentucky filed briefs in the Sixth Circuit supporting Cameron's and Danville Christian Academy's position.
Those religious schools from throughout Kentucky with a collective 4,600 students included Lexington Christian Academy, with an enrollment of 1,164 students, Lexington Latin School, Summit Christian Academy and Trinity Christian Academy, all in Lexington. Woodford Christian School in Versailles and Bourbon Christian Academy in Paris also backed Danville Christian.
Danville Christian, which initiated the lawsuit against Beshear, had planned to reopen to in-person instruction Monday but instead will abide by the appellate court order as officials consider whether to seek further legal relief, said Chris Freund, a spokesman for First Liberty Institute. It is a Texas-based non-profit legal organization that represents the academy.
On Friday, attorneys for several other religious schools that filed another federal lawsuit against Beshear filed a 21-page amicus on behalf of the schools that initially sued Beshear. The second lawsuit also is trying to stop Beshear's COVID-19 order limiting indoor gatherings to no more than eight people from two different households.
