Gov. Andy Beshear’s ban on in-person schooling will remain in effect at all Kentucky schools while federal judges consider whether it can apply to religious schools that follow social-distancing and hygiene rules.
Meanwhile, Beshear announced 2,803 new cases of the novel coronavirus, the most ever on a Sunday, and a record-high share of Kentuckians testing positive for the virus, 9.24%.
A three-judge panel of the U.S. Sixth Circuit Court of Appeals in Cincinnati stayed an injunction issued Wednesday by District Judge Greg Van Tatenhove, saying the religious schools were unlikely to win their case.
“As the governor explains, elementary and secondary schools pose unique problems for public health officials responding to the COVID-19 pandemic,” the court said in a seven-page opinion. “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. … 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.”
On Nov. 18, Beshear banned in-person schooling effective Monday, Nov. 23, and said middle and high schools mist remain in remote or virtual instruction until at least Jan. 4. He allowed elementary schools to resume in-person instruction Dec. 7 if they follow state guidance and are not in the state’s red zone, for the highest rates of infection. The order was part of several new restrictions to thwart the pandemic.
Two days later, Danville Christian Academy filed suit against the Democratic governor and his order, and Republican Attorney General Daniel Cameron joined as a plaintiff. Several other schools joined in. Van Tatenhove ruled that the state hadn’t used the least restrictive means, a requirement when the free exercise of religion is at issue.
Cameron said on Twitter, “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.”
The three judges on the appeals-court panel were John M. Rogers and Helene M. White of Michigan, who were appointed by George W. Bush, and Karen Nelson Moore of Ohio, who was appointed by Bill Clinton.
They wrote, “Primarily because plaintiffs are unlikely to succeed on the merits of their free-exercise claim, the preliminary injunction should not have been entered. This is because of the likelihood that our court will rule that the order in question is neutral and of general applicability,” a standard applied to cases involving religion, along with a standard of “strict scrutiny.” The panel wrote, citing a key word from Chief Justice John Roberts, “Any burden on plaintiffs’ religious practices is ‘incidental’ and therefore not subject to strict scrutiny.”
The judges also noted Beshear’s arguments that Kentucky is “particularly vulnerable” to the pandemic because the state “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 “Kentuckians also have high rates of comorbidities that can lead to severe cases of COVID-19, including heart and lung conditions.”
Beshear said on Facebook, “Today, the Sixth Circuit recognized that we must all do our part over the next several weeks to slow this virus. Don’t try to find an exception; do your part to save lives.”
Al Cross is professor emeritus of journalism at the University of Kentucky. He was the longest-serving political writer for the Louisville Courier Journal (1989-2004) and national president of the Society of Professional Journalists in 2001-02. He joined the Kentucky Journalism Hall of Fame in 2010. The NKyTribune is the home for his commentary which is also offered to other publications.
