Judge denies injunction for ousted KY education board; new board will meet Thursday
The new Kentucky Board of Education that Gov. Andy Beshear appointed on Inauguration Day will meet Thursday morning to discuss “possible action to terminate” the contract of Education Commissioner Wayne Lewis, according to a notice sent by the Department of Education Wednesday morning.
Meanwhile, Franklin Circuit Judge Thomas Wingate denied late Wednesday a request by the ousted board members for injunctive relief to block Beshear’s restructuring of the board, which oversees public education in the state. They are expected to appeal but it is doubtful they will get an appellate hearing before the new board meets.
The agenda released for the meeting says the new board will go into executive session “for discussion which might lead to the dismissal of Commissioner of Education.” It also says the board will discuss appointing an interim commissioner, terminating the commissioner’s contract, and conducting a national search for a new commissioner of education.
Lewis declined to comment Wednesday morning. He has said he would not resign immediately from his position and that the new board would have to give him 90 days prior written notice before he can be terminated without cause as required by his contract. His contract, which calls for a $200,000 annual salary, expires in October 2022.
Judge Wingate heard evidence Wednesday from ousted state school board members who filed a lawsuit to prevent Beshear’s state board reorganization. The newly appointed Kentucky Board of Education is scheduled to meet at 10 a.m. Thursday to discuss Lewis’ firing.
Bart Greenwald, a Louisville attorney who is representing the displaced state school board members, said if they get an unfavorable ruling from Wingate they would immediately appeal to the Kentucky Court of Appeals and to the Kentucky Supreme Court if necessary.
Former Kentucky Assistant Attorney General Amye Bensenhaver raised a question on social media of whether the ousted board violated the Open Meetings Act by not having a public vote on filing the legal action.
But ousted board member Gary Houchens told the Herald-Leader Wednesday that the lawsuit was not an official board action.
“The board is not engaged in a legal action here,” said Houchens. “We are a group of individuals using a common attorney to defend our individual rights to complete our terms on the board. If we were acting as an official entity we would be using KDE’s general counsel. We are not. Instead we are using a private attorney and paying our own legal fees. “
“Members are acting individually but united in purpose,” ousted board member Rich Gimmel said.
At Wednesday’s court hearing, Beshear’s deputy general counsel, Travis Mayo, said the Kentucky Supreme Court unanimously ruled this year that former Gov. Matt Bevin had the power to overhaul state boards that deal with public education. The high court upheld a 2018 ruling by Wingate.
The lawsuit in that case was brought by then Attorney General Beshear, who now is governor.
“We don’t believe there is a difference” between that case and the new case, said Mayo, claiming the governor has the right to restructure boards.
But Greenwald, flanked by two ousted board members — Houchens and Hal Heiner, said that Supreme Court decision did not say the governor had the power to fire a board member without cause.
Houchens said the high court has not ruled on whether a governor can remove members from the state education board without cause.
He said the state has an independent board that does not answer directly to the governor.
If the special board meeting occurs Thursday, “it will do irreparable harm to the good order of the Kentucky Department of Education and the stability of the education system in this state,” said Houchens.
If the court rulings go against the ousted board members, Heiner said, “It is something we all will end up regretting. And all of a sudden, we may end up with a Department of Education that is a pawn in every race” for governor.
Beshear has said for weeks he would act quickly when he took office to dismiss Lewis and the state Board of Education that former Gov. Matt Bevin had appointed. Teachers had said that those board members and the commissioner did not support public education because they, like Bevin, had advocated for charter schools in Kentucky.
In April 2018, state board members appointed by Bevin pushed then-Commissioner Stephen Pruitt to resign and replaced him with Lewis. Lewis, a University of Kentucky associate professor and the executive director of educational programs with the Kentucky Cabinet for Education and Workforce Development had advocated for charter schools, which many educators view as taking money from traditional public schools.
New board chairman David Karem on Tuesday said that Beshear asked him to help by becoming the new state board chair, but did not say, “Your instructions are to get rid of someone.”
On Wednesday morning, Karem said he could not comment on who might possibly be named interim commissioner because of the pending lawsuit.
Karem, a Democrat as is Beshear, said Tuesday he previously served as a state lawmaker for 33 years, and on the Kentucky Board of Education for seven years.
“I am deeply committed to quality public education in the Commonwealth,” said Karem. “I believe that the most important thing that state government can do is public education.”
Karem said Kentucky was fortunate to have Terry Holliday and Stephen Pruitt as former commissioners of education because they were national figures in education who significantly raised the image of Kentucky.
“I hope we go to the professional search to get a really quality person in there that can bring that same kind of credibility that” Holliday and Pruitt brought, Karem said.
Holliday retired as Commissioner in 2015. Pruitt is now President of the Southern Regional Education Board, he said. “That’s the kind of quality that was there... I’m sorry we lost him.”
Lu Young, another newly appointed state school board member with ties to Fayette and Jessamine schools, also said Tuesday she had been not been given a directive to fire Lewis.
Young was the superintendent of Jessamine County Schools before moving to Fayette County as chief academic officer. She is currently an associate clinical professor in the college of education at UK.
Young said she was excited about impacting students all around Kentucky.
“I can’t wait to get started,” she said.
All but one ousted state school board member filed a lawsuit against Beshear and Lt. Gov. Jacqueline Coleman Tuesday night, just hours after he announced the board reorganization during his inauguration speech.
The 22-page lawsuit, filed in Franklin Circuit Court, said the ousted board members would like nothing better than to work with Beshear to do what’s best for the state’s future and Kentucky’s children.
“The Executive Order violates Kentucky law because the Governor failed to follow strict statutory procedure and, instead, uses his political position to skirt the same laws he publicly sought to uphold during his four-year tenure as Kentucky Attorney General,” the lawsuit said. “Simply put, the Governor has attempted to make good on promises he made during his campaign for Governor that he knew, or at least should have known, were legally impossible.”
Gimmel said Tuesday night that the governor has the right to appoint any person to the board who meets the qualifications, “but this needs to be done legally.”
“There is an established, orderly process for board transition that is spelled out in state law. That process has been followed by every governor since KERA was passed in 1990, until now,” said Gimmel.
“We were hopeful the new governor would make good on his promise to change the tone in Frankfort and create a more cooperative atmosphere, welcoming and respecting various viewpoints,” said Gimmel. “He doesn’t appear to be off to a particularly good start in that effort.”
This story was originally published December 11, 2019 at 9:26 AM.
