Kentucky AG: Government Can’t Shut Down In-Person Teaching at Religious Schools
From a Kentucky Attorney General opinion released on Aug. 19, but just posted on Westlaw:
Subject: Whether, during the current state of emergency caused by the spread of the novel coronavirus, the Governor, the Cabinet for Health and Family Services, or any other state or local officials may order the closure of religiously affiliated schools that are in compliance with reasonable social distancing and hygiene guidelines set forth by recognized national or international health agencies and organizations.
Syllabus: No. Under the First and Fourteenth Amendments to the United States Constitution, and Kentucky’s Religious Freedom Restoration Act, KRS 446.350, the Governor, the Cabinet for Health and Family Services, and any other state and local officials, are prohibited from closing religiously affiliated schools because it does not appear that school closure is the least restrictive means to serve a compelling state interest….
Although life in the Commonwealth has changed, the United States Constitution and the demands of Kentucky law have not. On March 6, 2020, Governor Andrew Beshear declared a state of emergency in response to the spread of the novel coronavirus. Since that time, state and local officials have taken extraordinary measures in an attempt to protect the public health. All of the measures may have been well-intended, but many have been unconstitutional. See, e.g., Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (finding the Governor’s ban on drive-in church services unconstitutional); Roberts v. Neace, — F.Supp.3d —-, No. 2:20-cv-054, 2020 WL 2115358 (E.D. Ky. May 4, 2020) (finding the Governor’s travel ban unconstitutional); Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, — F.Supp.3d —-, No. 3:20-CV-00033-GFVT, 2020 WL 2305307 (E.D. Ky. May 8, 2020) (granting statewide injunction against of the Governor’s prohibition on mass gatherings with respect to any in-person religious service that adheres to applicable social distancing and hygiene guidelines); Ramsek v. Beshear, — F.Supp.3d —, No. 3:20-cv-00036-GFVT, 2020 WL 3446249 (E.D. Ky. June 24, 2020) (finding the Governor’s ban on political protests unconstitutional). “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
During these extraordinary times, on August 10, 2020, Governor Beshear “recommended” that districts delay in-person instruction until September 28, 2020. Now, in a reversal for some, and in response to the Governor’s recommendation and pressure from the Department of Education, most public schools are preparing to start the year using non-traditional instruction … rather than in-person instruction.
However, a number of religiously affiliated schools, after a summer of preparation, have chosen to begin in-person instruction. Understandably, religiously affiliated schools and concerned parents wonder whether the Governor, or other state and local officials, may lawf
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