Bevin attorney ‘guardedly optimistic’ after federal hearing on teacher sickout subpoenas

A federal judge said Tuesday that he would decide soon whether or not to issue a temporary restraining order blocking school districts from having to respond to Labor Cabinet subpoenas of teacher-absence records.

U.S. District Judge Danny Reeves said he would not likely decide before a May 10 deadline to turn over the records, but he would rule before the Labor Cabinet could penalize teachers for participating in General Assembly protests during work stoppages.

In a hearing that lasted nearly two hours, Kentucky Deputy Attorney General J. Michael Brown urged the judge to intervene after the Labor Cabinet sought 10 school districts’ records on teacher absences during sickouts that gave teachers time to protest in the 2019 General Assembly.

On Attorney General Andy Beshear’s behalf, Brown also urged Reeves to prevent Labor Cabinet Secretary David Dickerson from fining or punishing teachers.

Reeves noted that he had to make a decision that “was in the best interest of the public,” not just teachers.

The attorney general’s office has said that the subpoenas are “unlawful because they target constitutionally protected speech” and the Labor Cabinet does not employ the individual teachers.

After Tuesday’s hearing, Gov. Matt Bevin’s General Counsel Steve Pitt, who represented Dickerson in the fight for absence records, told the Herald-Leader he was “guardedly optimistic” that the judge would not issue a temporary restraining order.

Pitt said he was encouraged because the judge “picked up on many of the issues” that Pitt had argued, including that school closings harmed students and parents and that the Labor Cabinet investigation should be allowed to continue.

Fayette, Jefferson and several other districts that canceled classes said they received 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 Labor Cabinet subpoenas were 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 issued to individual teachers.

After Beshear and the Jefferson County Teachers Association last week filed a lawsuit against Dickerson to prevent school districts from having to turn over the information, Lewis said he received a subpoena for the information and that he gave the names of educators who were absent to the Labor Cabinet. Lewis had collected the information from school districts earlier.

Reeves asked if Lewis handing over records made the request for a restraining order moot. The documents contained names and some other information, such as doctors’ excuses, but not everything sought by the Labor Cabinet, attorneys said. Brown said school districts have not yet complied with the Labor Cabinet.

In addition to Fayette and Jefferson, Bath, Boyd, Bullitt, Carter, Letcher, Madison, Marion and Oldham county school districts received the Labor Cabinet subpoenas.

In response to Beshear’s request for a temporary restraining order, attorneys for Bevin argued that Beshear and the teacher’s association “ cannot make a showing of irreparable harm. They cannot overcome the harm that an injunction would impose upon Secretary Dickerson and the cabinet’s regulatory power. “

Bevin’s attorneys also argued that “working parents have had to scramble for childcare on short notice. Some have expressed concern that their children are going to miss summer camp. In Louisville, students had to postpone the ACT — a requirement for college — and parents have expressed their concern that the significant investment they made in prep courses has gone to waste. Worst of all, children—the ultimate beneficiaries of public education—were denied this very service so that public-school employees could travel to Frankfort and complain about a legislative proposal that would provide funding to private schools. “

Reeves mentioned Tuesday that some parents couldn’t afford babysitters when schools closed and might have lost money when they had to stay home from work.

Brown told the judge that if not stopped, the Labor subpoenas would have a “chilling” effect on teachers returning to Frankfort to protest.

After the hearing, Brown told reporters that a key question is “how does the government use its power.”

“Teachers and the public have a right to seek redress when the government acts against their interests,” Brown said.

Shelley Chatfield, the attorney for Fayette County Public Schools, sat in the audience at Tuesday’s hearing. She said the school district does not comment on pending cases.

Beshear also has asked that his lawsuit against Dickerson be moved back to Franklin Circuit Court, calling last week’s removal of the case from state circuit to federal court by Dickerson, “frivolous and sanctionable. “

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.