The Supreme Court on Thursday rejected a Kentucky Christian school’s plea to reopen for in-person learning, upholding a health order from the governor that barred in-person K-12 education in most areas until January.
Kentucky Gov. Andy Beshear’s Nov. 18 executive order, which applied to both public and private schools, closed elementary, middle, and high schools in the state and ordered them to transition to virtual learning beginning Nov. 23.
The order allowed for elementary schools in “red” zones— counties with 25 or more new coronavirus cases a day— to reopen as long as they are following state public health guidance. Middle and high schools were not allowed to resume in person learning before Jan. 4.
Danville Christian Academy, a private school located an hour south of Lexington, sued over the order. Boyle County, where Danville Christian Academy is located, currently has a COVID-19 positivity rate of 113.6 cases per 100,000 residents, placing it in a “Red” designation.
A federal district judge ruled Nov. 25 that Beshear’s order could not apply to private religious schools because it infringed on their First Amendment rights. But on Nov. 29, a federal appeals court overturned that decision, upholding Beshear’s original order.
Danville Christian Academy asked the US Supreme Court temporarily to suspend the executive order while its appeal is pending. In an unsigned Dec. 17 opinion, the court declined to do so.
Citing the approaching end of the fall semester— which for most Kentucky schools is Dec. 18— the Court wrote that a ruling against the state would have “little practical effect.”
However, the school has vowed to file a new lawsuit if Beshear renews the health order on Jan. 4, noting that Justice Samuel Alito in a dissent wrote that the Court’s denial of emergency relief ought not be interpreted as “approval of the Sixth Circuit’s decision” to allow the governor’s order.
“While we would have liked the Court to rule on the merits today, we appreciate the Court’s specific invitation to us to seek an injunction if the Governor decides to reissue his unconstitutional order on Jan 4th. Rest assured, if the Governor does so on Jan 4th, we will file against him immediately,” Kelly Shackelford, president of First Liberty Institute, commented.
“The courts need to send a message to Governor Beshear and government officials around the nation that our God-given rights are still protected, even in a crisis, and especially from irrational and discriminatory government orders. The First Amendment protects religious education just as it protects worship.”
Alito noted that the court’s decision was based primarily on timing, even though the school filed its appeal “expeditiously,” bringing it to the Supreme Court Dec. 1, two days after the 6th Circuit’s ruling.
Justice Neal Gorsuch also filed a dissenting opinion, writing that throughout the pandemic there have been examples that some Kentucky state officials “have sometimes treated constitutional rights with suspicion,” and that the Supreme Court has “made clear it would no longer tolerate such departures from the Constitution,” even “in a case where the challenged edict had arguably expired.”
The court said the school or others could return and seek relief again if the governor renews the order.
The school had argued that the governor’s order discriminated against religious practice, since secular businesses, such as theaters, bowling alleys, casinos and offices, were allowed to continue in-person with some restrictions.
Thirty-eight Republican Senators - including Senate Majority Leader Mitch McConnell and Sen. Rand Paul, both of Kentucky - filed a friend-of-the-court brief with the Supreme Court Dec. 4.
“COVID-19 is undoubtedly a serious health threat, but the Constitution applies even in difficult times. This Court should again remind Governors across the Country that shutdown orders cannot trample Constitutional rights,” the Senators stated in their amicus brief.
The Becket Fund for Religious Liberty submitted an amicus curiae brief, arguing not only “That movie theaters and horse tracks are open for business, but religious schools cannot open, is reason enough to vacate the Sixth Circuit’s stay,” but also that Beshear’s executive order is subject to strict scrutiny because it interferes “with the right of parents under the Free Exercise Clause to direct ‘the religious upbringing and education of their children’”.
Beshear has defended his order, citing health risks and the order’s equal treatment of public and private schools. "Kentucky is in the midst of a deadly third wave of the coronavirus. We have taken the necessary actions to slow the growth in cases and save the lives of our fellow Kentuckians," Beshear said in a Dec. 4 statement, reported by the Courier Journal.
"In the most recent executive order regarding schools, every school is treated equally and each is asked to do its part over a limited period of time to slow the spread of the virus. The effectiveness of these actions requires everyone to take part, and anyone or any entity that tries to be the exception lessens the effectiveness of the steps,” he added.
In November, the Supreme Court ruled 5-4 in favor of the Brooklyn diocese and Orthodox Jewish synagogues in their case against New York’s COVID restrictions. The court found that, while churches were restricted, other businesses deemed “essential” by the state did not have capacity limits indoors.
The federal appeals court which ruled to uphold Beshear’s order said that the case was “distinguishable” from Cuomo’s order, since the Kentucky order applied to both religious and public schools, the Courier Journal reported.
Schools throughout the United States have grappled with what to do about in-person learning after the coronavirus pandemic caused nationwide shutdowns last March. Though the country saw a dip in coronavirus cases over the summer, recent surges this fall, shortly after classes resumed, have caused some schools to close again, and some states to reinstate lockdowns or stay-at-home orders.
Catholic schools have worked to put extensive health and safety regulations in place, including mandatory masking and social distancing, and virtual options for families who choose to keep their children at home. Some Catholic school leaders and bishops have argued that children have a right to in-person learning, which can help to ensure the quality of their education and to prevent their social isolation.
Some Catholic schools, such as those in Baltimore, have seen spikes in enrollment this fall because they are offering in-person learning more consistently than area public schools.
In Michigan, two high schools in the Diocese of Lansing joined a lawsuit in early December against a public health order keeping schools in Michigan closed for in-person learning, calling the order “scientifically, educationally and constitutionally unjustified.”
Governor Gretchen Whitmer announced Dec. 7 an extension of public health orders meant to curb the spread of the coronavirus until Dec. 20. The orders had originally gone into effect Nov. 18 and were due to expire at the end of the day Dec. 8, the Detroit Free Press reported.
They include continued restrictions on indoor dining as well as a 12-day extension of a ban on in-person learning for high schools, colleges, and universities.
