A religious liberty law firm and the Kentucky attorney general have filed a lawsuit against Gov. Andy Beshear, D-Ky., asking a court to block the implementation of his executive order banning religious schools from holding in-person learning.
First Liberty Institute, which describes itself as “the largest legal organization in the nation dedicated exclusively to defending religious freedom for All Americans,” filed the lawsuit on behalf of Danville Christian Academy in the Eastern District of Kentucky Friday. Attorney General Daniel Cameron joined the lawsuit as a plaintiff.
Citing a “potentially catastrophic surge in COVID-19 cases,” Beshear issued Executive Order 2020-969 Wednesday, which mandated all public and private elementary, middle and high schools to “cease in-person instruction and transition to remote or virtual instruction” beginning Monday.
The executive order requires middle and high schools to refrain from in-person learning until Jan. 4, while elementary schools can resume in-person learning on Dec. 7 if they are not located in a “Red Zone County” as designated by the Kentucky Department of Public Health.
“The Governor’s school-closure order prohibits religious organizations from educating children consistent with and according to their faith,” Cameron explained. “The ability to provide and receive a private religious education is a core part of the freedoms protected by the First Amendment. Religiously affiliated schools that follow recommended social-distancing guidelines should be allowed to remain open.”
Cameron’s comments reflect guidance he issued back in August, when he found that “any order by a state or local official to close a religiously affiliated school likely would ‘prohibit the free exercise’ of religion in violation of the First and Fourteenth Amendments, especially if the government continues its arbitrary manner of picking and choosing which institutions must close and which may remain open to the public.”
The guidance also suggested that closing religious schools would also run afoul of Kentucky’s Religious Freedom Restoration Act.
The attorney general’s office noted that many Kentucky classrooms have “25 people per room.” According to First Liberty Institute, “Governor Beshear issued a separate EO, 2020-968, that permits secular establishments like restaurants, bars, fitness centers, and indoor recreation facilities to continue operating at limited capacity.”
Executive Order 2020-968 permits “venues, event spaces, and theaters” to operate with a limit of “25 people per room,” reinforcing Cameron’s concern about the government “picking and choosing which institutions must close and which may remain open to the public.”
“If it is safe for individuals to gather in venues, shop in stores, and work in office environments, why is it unsafe for Kentucky schools to continue in-person operations while applying the same safety protocols?” Cameron asked.
“The Governor’s orders are arbitrary and inconsistent when it comes to school closures in Kentucky. We urge the Governor to follow the legal opinions issued earlier this year by multiple federal judges and allow religious schools to follow in-person instruction while following recommended health guidelines.”
Roger Byron, senior counsel at First Liberty, called the governor's limits on religious gatherings "blatantly unconstitutional."
"Despite repeatedly losing in court during the pandemic he has once again issued an order that violates the Constitution and puts kids at risk,” Byron contended.
“The CDC made it clear that one of the safest locations students can be at during the pandemic is in school. The court should reject Governor Beshear’s order and follow the CDC and the law."
The legal firm cited comments recently made by CDC Director Robert Redfield, who said last week at a coronavirus task force briefing that "one of the safest places" for children is school.
"[I]t’s really important that following the data, making sure we don’t make emotional decisions about what to close and what not to close. I’m here to say clearly the data strongly supports that K-12 schools – as well as institutes of higher learning – really are not where we’re having our challenges,” he said.
This is not the first time that First Liberty has taken legal action against Beshear’s coronavirus restrictions. Earlier this year, the law firm represented a Kentucky church as it successfully challenged Beshear’s ban on religious services, which he implemented in the weeks following the coronavirus outbreak in the U.S.
In a press conference Thursday, Beshear maintained that the suspension of in-person learning at Kentucky schools is necessary to stop the spread of the coronavirus: “You’ve got two choices. You can just do nothing but be upset at me and those that … are making these choices, or we can do our part.”
According to Beshear, “This virus is doing everything we hate. If you’re upset that school’s going to be virtual, you can be upset with me but it’s the virus.”
A spokeswoman for Beshear responded to the lawsuit by defending his move to suspend in-person learning: “The Governor has followed the advice of the Centers for Disease Control and Prevention, the White House Coronavirus Task Force and public health experts; and many other Governors across the country are taking similar actions to protect the health and lives of children and families.
“The attorney general should stop playing politics and instead help Kentuckians understand what it takes to defeat this virus.”