‘I’m here to stop him.’ Beshear filing lawsuit against teacher ‘sickout’ subpoenas.
As promised, Attorney General Andy Beshear on Monday said he is taking legal action against the Bevin administration for refusing to withdraw subpoenas of teacher absence records from ten Kentucky school districts.
Beshear is joined by the Jefferson County Teachers Association in filing a lawsuit in Franklin Circuit Court.
Beshear said he is asking a judge to issue a temporary restraining order to ensure school districts are not forced to respond to the subpoenas by the May 10 deadline and to protect teachers from being fined. The case has been assigned to Franklin Circuit Judge Phillip Shepherd, whom Gov. Matt Bevin has previously criticized.
“We have had enough of this governor’s bullying of our public school teachers and I am not going to let it continue,” Beshear said.
“Governor Bevin has called our teachers thugs...ignorant people,” he said. “His administration wants to subpoena school districts so he can attempt to directly fine teachers up to $1,000 a day for showing up at this Capitol and protesting legislation which would significantly harm public education. The governor’s words and actions are despicable. They are bullying and I’m here to stop him.”
“This is a threat,” Beshear said. “Our teachers do not deserve this...this is wrong.”
Bevin, a Republican, is running for re-election this year and Beshear, a Democrat, is competing for the party’s nomination this spring to face the governor in November’s general election.
Bevin told reporters after ceremonially signing an anti-abortion bill in the Capitol Rotunda that Beshear is “incompetent” and is “an embarrassment” to the state. He chided Beshear for using his campaign social media accounts to tout the lawsuit and said he hopes the Executive Branch Ethics Commission is looking at this.
He noted that Beshear said in his earlier news conference that he was filing the lawsuit to defend teachers’ First Amendment rights to speak out. But Bevin said there “wasn’t a peep” about the First Amendment in the suit.
“If it were a First Amendment issue, what would this have been? A federal-level issue and then he couldn’t have given it to his friend, Phil Shepherd“ in state court, Bevin said.
He said it was odd that Shepherd, whom Bevin has called “an incompetent hack,” usually is assigned suits filed by Beshear against the administration.
Beshear spokeswoman Crystal Staley said the Kentucky Constitution gives teachers the rights to free speech and assembly. She also noted that a footnote on page 21 of Beshear’s request for injunctive relief says the Kentucky Supreme Court has determined that the Kentucky Constitution provides protections “co-extensive” with the First Amendment and that Beshear’s request for a restraining order discusses constitutional rights.
Shortly before Beshear’s morning news conference began, Bevin’s chief of staff, Blake Brickman, posted on Twitter that “candidate Beshear is, unsurprisingly, more concerned about politics than the law, and the motives behind his imminent lawsuit became crystal clear the moment he used campaign resources to promote this latest stunt.”
Last week, Kentucky Labor Secretary David Dickerson refused Beshear’s request that Dickerson withdraw subpoenas for teacher absence records during recent teacher protests at the 2019 General Assembly. Fayette is among the Kentucky districts that received the Labor Cabinet subpoena for teacher absence records during recent legislative protests.
Fayette, Jefferson and several other districts that canceled classes said they received the subpoenas asking for absence records, medical affidavits confirming illnesses, records of teachers making requests for absences, documents regarding the closing of schools, and district policies. The subpoenas were issued by the Labor Cabinet as part of an inquiry into possible violations of labor law. Kentucky Education Commissioner Wayne Lewis has said that such violations could result in $1,000 fines to individual teachers.
Beshear said he is asking for a court hearing on May 6 to stop the subpoenas before the responses are due on May 10.
Beshear made his request for the withdrawal April 16 at a news conference, saying that educators were being bullied by Bevin’s administration. Beshear has told Bevin and Dickerson that the sickouts did not violate labor law and any attempt to punish or fine teachers who participated would violate their First Amendment rights.
In a letter to Beshear, Dickerson responded, “I see no valid reason to overlook possible violations of Kentucky law.”
Beshear said in a news release Monday that at issue is “ is the administration’s unlawful use of a state labor law to seek records and names of teachers and possibly fine them up to $1,000 a day for allegedly using sick days to attend rallies in support of public education. “
Beshear said Dickerson does not have the authority to request the information or fine teachers. “There is no strike or work stoppage here.”
“I am keeping my word and taking action to stop the governor from retaliating against our teachers and obstructing their constitutional rights of free speech,” Beshear said. Beshear said he was a graduate of Fayette County Public Schools in Lexington and he wouldn’t be Kentucky Attorney General “but for my public school teachers.”
On April 16, Beshear sent a letter requesting the governor and his Labor Cabinet rescind “sickout’ subpoenas sent to local school districts within 10 days. Bath, Boyd, Bullitt, Carter, Fayette, Jefferson, Letcher, Madison, Marion and Oldham county school districts received the subpoenas. Beshear said he has told school district officials that he thinks the subpoenas are unlawful and he does not think they will respond before the hearing.
Beshear said on Monday Bevin was trying to intimidate teachers with subpoenas at a time when he is going to call a special session on pensions so that teachers will feel that they can’t go to the Capitol without reprisals. He said teachers should be able to protest without fear.
Beshear said his lawsuit is supported by a case, “where a court found that a teachers’ sickout was based on complaints to the state government to rectify educational, financial and structural problems in the Detroit Public School District, and not issues concerning the rights, privileges or conditions of their employment.” He said that court found their actions were not in violation of the state’s labor laws, but were constitutionally protected free speech.
This story was originally published April 29, 2019 at 10:30 AM.