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Thursday, November 26, 2020

Federal Judge: Gov. Beshear cannot stop in-person classes at private religious schools

Newport Central Catholic, FTM file. 

A federal judge has struck down a portion of Governor Andy Beshear's executive order requiring private as well as public schools to halt in-person classes until December 7 for elementary schools and January 4 for middle and high schools. 

U.S. District Judge Gregory Van Tatenhove said in a 22-page order that he was granting a preliminary injunction to 17 private Christian schools that had filed a lawsuit against Beshear’s emergency restriction. He said his order would apply statewide.

The order does still remain in place for public schools.

"There is ample scientific evidence that COVID-19 is exceptionally contagious," the judge wrote in his opinion. "But evidence that the risk of contagion is heightened in a religious setting any more than a secular setting, or in K-12 schools as opposed to preschools, universities or colleges is lacking.”

“If social distancing is good enough for offices, colleges, and universities within the Commonwealth, it is good enough for religious private K-12 schools that benefit from constitutional protection," Van Tatenhove wrote. "Ultimately, the First Amendment protects the right of religious institutions ‘to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

He went on to write that the Governor, nor Commissioner for Public Health, Dr. Steven Stack haven't made an adequate case to close in-person schools. 

“(They) have not adequately explained why K-12 schools must close” while preschools, universities and colleges remain open as long as certain precautions are taken."

Beshear’s order also seems to run counter to CDC recommendations, said the order, noting that CDC Director, Robert Redfield, recently said that school is one of the safest places for children.

"The truth is, for kids (Kindergarten) through 12, one of the safest places they can be, from our perspective, is to remain in school," Redfield said. "And it’s really important that — following the data, making sure we don’t make emotional decisions about what to close and what not to close."

A spokesperson for Governor Beshear said that an appeal has already been filed in the 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,” said Crystal Staley, spokeswoman for Gov. Beshear. "Let’s be clear: lives are on the line and everyone must do their part to defeat the virus.”

Tatenhove was the same judge who ruled earlier this year that Beshear could not halt in-person services at houses of worship. The Kentucky Supreme Court earlier this month unanimously upheld the governor’s emergency orders.

Danville Christian Academy, a Boyle County school that serves 234 students in preschool through 12th grade, and Kentucky Attorney General Daniel Cameron filed the lawsuit on November 20 in U.S. District Court for the Eastern District of Kentucky. 

They plan to open in-person instruction on Monday.

Locally, no private schools have announced their plans. 

Last week, Gov. Beshear issued the school-related executive order as well as  new restrictions that apply until mid-December for restaurants, bars, gyms, offices, indoor gatherings, weddings and funerals in response to a third wave of Covid-19 cases spreading across the Commonwealth. 

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