Kentucky Governor Can't Halt In-Person Instruction at Private Religious Schools: Judge

Kentucky Governor Can't Halt In-Person Instruction at Private Religious Schools: Judge
Kentucky Gov. Andy Beshear speaks during a news conference at the state's Emergency Operations Center at the Boone National Guard Center in Frankfort, Ky., on May 3, 2020. (Ryan C. Hermens/Lexington Herald-Leader via AP)
Zachary Stieber

Kentucky's governor cannot prevent religious schools from providing in-person instruction to students, a federal judge ruled on Wednesday.

Gov. Andy Beshear's executive order closing K-12 schools appears to violate the First Amendment of the U.S. Constitution, the judge said in his 22-page ruling.

"The governor has every right to impose some restrictions on all schools, religious and secular alike," wrote District Judge Gregory Van Tatenhove, a George W. Bush appointee.

"Social distancing, face masks, limits on class size, reporting requirements, and other protocols may cost money and may be inconvenient for parents and students, but we give executives increased discretion in times of crisis. But in an effort to do the right thing to fight the virus, the governor cannot do the wrong thing by infringing protected values."

Beshear, who is in his first term, signed an executive order on Nov. 28 mandating all grade schools stop in-person classes from Nov. 20 through Dec. 13.

"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," the judge said in his ruling. "Of even more significance, preschools in the state remain open after this executive order, as do colleges and universities."

Additionally, the order appears to run counter to recommendations from the Centers for Disease Control and Prevention. Just last week, the federal agency's director, Dr. Robert Redfield, told reporters in Washington that "one of the safest places" school children can be is in school, adding that it is "counterproductive" to close schools.

Beshear is prevented from enforcing the prohibition on in-person instruction on any religious private school in the state that adheres to social distancing and hygiene guidelines.

In a statement to news outlets, a spokeswoman for the governor said he has already appealed the decision to the U.S. 6th Circuit Court of Appeals.

“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,” she said.

 Danville Christian Academy in Danville, Ky., in an undated photograph. (Google Maps)
Danville Christian Academy in Danville, Ky., in an undated photograph. (Google Maps)

The judge earlier this year ruled that the governor could not stop in-person church services. The Kentucky Supreme Court recently upheld other emergency orders the governor has issued during the COVID-19 pandemic, including ones limiting occupancy inside restaurants and requiring masks be worn outside people's homes.

The plaintiff in the suit relating to schools is Danville Christian Academy, represented by the First Liberty Institute.

“The court recognized that Governor 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, sad in a statement. [delete]
Kentucky Attorney General Daniel Cameron, a Republican, joined the plaintiffs this week.

Cameron said in a statement Wednesday that he is "incredibly thankful for the timeless and enduring protections enshrined in the U.S. Constitution."

"More than 200 years ago, our founders answered the question presented to the court in this case by protecting the free exercise of religion, and today, the court firmly upheld that guarantee by recognizing that Kentuckians have a right to worship and express their faith through a religious education," he added.

In statements to the Lexington Herald-Leader, Kentucky Senate President Robert Stivers and House Speaker David Osborne, both Republicans, said they agreed with the ruling.

“We understand that safety precautions need to be taken during this pandemic, but our frustration with the governor’s orders arise when his language is vague, conflicting on its face, and is inconsistently applied,” said Stivers.

“Today’s ruling in federal court confirms our belief that as Americans we possess rights so sacred they must be preserved regardless of the circumstances,” said Osborne.

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