Federal judge questions second-guessing Ky. Supreme Court in Board of Education fight

A federal judge on Tuesday questioned whether he should “second guess” the Kentucky Supreme Court and rule on the fight from the old Kentucky Board of Education appointed by former Gov. Matt Bevin against Gov. Andy Beshear, who appointed a new board of education.

U.S. District Judge Gregory F. Van Tatenhove asked Tuesday if federal court was the correct place for the case in which seven former members are asking for an emergency injunction that would stop the work of the new board appointed by Beshear. The injuction would restore the former board members to the Kentucky Board of Education.

New board members said in a recent court motion that the Supreme Court of Kentucky has held that the Governor’s power includes the abolition of an administrative body,’ meaning that members of the specific board that the Governor has abolished may be removed from their positions. In August 2019, the Kentucky Supreme Court unanimously upheld Bevin’s reorganization of several boards that oversee public education in the state.

In December, the Kentucky Supreme Court unanimously denied an injunction filed by ousted members of the Kentucky Board of Education who filed an emergency motion to stop the first meeting of Beshear’s newly appointed members. In a two-page order, the state’s highest court said the board members had “not shown any extraordinary cause which entitles them to relief from this court.”

The old board recently moved their lawsuit against Beshear from Franklin Circuit Court to U.S. District Court in Frankfort.

Van Tatenhove said on Tuesday that to find in favor of former board members, he would have to determine that the Kentucky Supreme Court “got this wrong.” However, at the end of the hearing, Van Tatenhove said he would rule sometime in the next several days.

Prior to the state Supreme Court ruling, Franklin Circuit Judge Thomas Wingate denied a request from the ousted board members for an injunction to block Beshear’s restructuring of the board. The new board members, ranging from a former University of Kentucky president to a former superintendent and educators, successfully pushed for the resignation of Commissioner Wayne Lewis.

The injunction debated at Tuesday’s federal hearing said that Beshear replaced the former board members without cause before their terms ended.

“We believe that the Governor’s executive order was unconstitutional and illegal because he never extended any due process to the board members,” Steven J. Megerle, the Covington attorney representing the former state board of education members, has told the Herald-Leader. He said Tuesday that it would be a “scary situation” in Kentucky if boards can be abolished and reconstituted.

During his gubernatorial campaign against Bevin, Beshear, a Democrat, pledged to replace board of education members appointed by Bevin, a Republican, with people who he said supported public education and with board members who would hire a state commissioner of education in favor of public education. On his inauguration day, Beshear replaced the state school board members appointed by Bevin with his own appointees. Public school educators have voiced concerns that Lewis and former state school board members were proponents of charter schools, which critics say siphon funds from traditional public schools.

In April 2018, when the terms of state education board members Bevin had not appointed expired, Bevin appointed several new board members. A board that was entirely appointed by Bevin then forced the resignation of Commissioner Stephen Pruitt and hired Lewis as the Commissioner without a national search.

Gary Houchens, one of the seven former state board members who filed the court action in U.S. District Court in Frankfort, said after Tuesday’s hearing that no court has ruled on the broader question of whether state school board members can be removed from the board prior to the end of their terms without cause.

Beshear’s Deputy General Counsel Marc Farris said during Tuesday’s hearing that Beshear legally abolished the former board appointed by Bevin.

Van Tatenhove told Megerle that in order to issue an injunction, he would have to find that the new board was doing the kind of harm that could not be fixed. Farris said that was not the case and an attorney for the current Kentucky Board of Education said halting its work could harm teachers and students.

Crystal Staley, a spokeswoman for Beshear said in a statement after the hearing that “Gov. Beshear has said we have to have a Board of Education and commissioner that value public education. The Kentucky Supreme Court has said the governor has the authority to reorganize the board.”

“The statutes governing the board are designed so the governor can select the very best, which he did including a superintendent of the year, an inductee into the National Teaching Hall of Fame and a former president of the University of Kentucky. The governor’s reorganization was required to remedy the former administration’s hiring of a supporter as commissioner instead of conducting a national search to find the very best,” Staley said.

Houchens, however, said after the hearing that the independence of the Kentucky Board of Education had been destroyed by Beshear’s action.

“That is the irreparable harm,” Houchens said, “It needs to be addressed.”

Megerle said the seven former board members filing the recent motion for an emergency federal injunction are Houchens, Rich Gimmel, Milton Seymore, Laura Timberlake, Ben Cundiff, Joe Papalia, and Kathy Gornik. Several of them came to Tuesday’s hearing in Frankfort.

The Bevin-appointed board members are partnering with the Bluegrass Institute for Public Policy Solutions in the federal court action. Jim Waters, president and CEO of the Bluegrass Institute, has said his group was providing legal and financial help in part because Beshear “made it clear during his campaign that he wanted to fire state education board members because he disagrees with their support for education reform in general and school choice in particular.”

This story was originally published February 11, 2020 at 4:47 PM.