4 Lexington Christian schools, 1,000 parents in Ky. back lawsuit against Beshear closings

Seventeen Kentucky Christian schools, including Lexington Christian Academy and three others in Fayette County, filed a brief Sunday night in support of a federal lawsuit against Gov. Andy Beshear‘s order stopping in-person instruction at public and private K-12 schools.

On Monday morning, less than 72 hours after the lawsuit was filed, more than 1,000 Kentucky parents filed a separate brief in support of the lawsuit. The brief filed by the parents said Beshear’s executive order explicitly violates Danville Christian Academy’s right to the free exercise of religion, and also violates the free exercise rights of parents that send their children to religious schools as part of the children’s religious training.

“No evidence whatsoever has linked any current increase in COVID cases to numbers in schools,” said the brief filed by the religious schools in U.S. District Court in Frankfort. Amicus briefs, as they are called, are often filed by those affected by court cases to which they are not parties.

“Because the religious schools believe both in the importance of their mission and the need for in-person instruction to the greatest extent possible, each of the religious schools has taken extraordinary steps and incurred significant financial expense to provide safe in-person learning during this academic year, “ the brief said.

Nevertheless, Beshear added new COVID-19 restrictions last week after the Kentucky Supreme Court ruled earlier this month that he can to protect the health and safety of Kentucky citizens.

Despite that ruling, Danville Christian Academy and Kentucky Attorney General Daniel Cameron on Friday filed a federal lawsuit against Beshear, arguing that his order closing Kentucky’s schools, including private religious schools, violates the First Amendment of the Constitution and the state’s Religious Freedom and Restoration Act.

Beshear said Monday at his regular news conference to update the COVID-19 situation in Kentucky said he closed schools to in-person learning as a last resort. He said 10,000 school kids had been in quarantine. “It is not safe,” said the Democratic governor.

The motion for a temporary restraining order filed along with the federal lawsuit said, “Danville Christian has a sincerely held religious belief that it is called by God to have in-person instruction for its students, and it believes that ‘its students should be educated with a Christian worldview in a communal in-person environment.’”

A hearing on the request for a temporary restraining order was held Monday afternoon in U.S. District Court in Lexington before Judge Gregory F. Van Tatenhove. He is expected to make a decision this week.

Beshear’s general counsel team filed earlier Monday a 30-page response in opposition to the plaintiffs’ motion.

It said Beshear’s order is constitutional and treated all schools equally, that the plaintiffs do not allege an immediate irreparable injury and “they cannot counter the substantial harm and detriment to the public interest that their requested relief could cause.”

The governor’s motion noted that the Kentucky Supreme Court unanimously has upheld his emergency orders.

Beshear’s attorneys said Kentucky “remains in a war” against COVID-19, which has resulted in the death of more than 256,000 Americans and 1,787 Kentuckians. They said Kentucky, like most other states, is in the midst of “a potentially catastrophic third wave” of the virus and that the widespread disease threatens to overwhelm the state’s health care system by filling up essential hospital beds and sidelining critical health care workers.

“Schools are a particularly difficult problem for public health officials,” Beshear’s legal team said, noting that compliance with facial coverings and social distancing are hard to maintain.

They said preliminary injunctive relief “is an extraordinary remedy which should be granted only” if there is proof that the circumstances clearly demand it.”

In light of the public safety threat that COVID-19 poses to Kentuckians, the plaintiffs “cannot meet the high burden necessary to obtain preliminary injunctive relief, they said.

The court must decide whether the plaintiffs will suffer irreparable harm, whether the injunction will cause substantial harm to others and whether the injunction serves the public interest, Beshear’s attorneys said.

“The equities favor saving lives over giving special treatment to plaintiffs.”

The schools filing the brief include Bourbon Christian Academy in Paris, Foundation Christian Academy in Bowling Green, Heritage Christian School in Owensboro, Somerset Christian School, Kentucky Christian Academy in Campbellsville. Lexington schools include Lexington Christian Academy, Lexington Latin School, Summit Christian Academy and Trinity Christian Academy. They say they have been offering safe in-person instruction in compliance with the Centers for Disease Control and Prevention social distancing guidelines since the start of the academic year.

The religious schools have heavily invested in COVID precautions, including plexiglass barriers, personal protective equipment, sanitation equipment, physical distancing screens and barriers, thermometers, additional desks and tables, Wi-Fi, signage, and medical supplies, according to the court brief.

For example, Trinity Christian Academy in Lexington spent approximately $70,000, and Lexington Christian Academy spent about $392,000, the court document said. Others like Somerset Christian School hired additional faculty to add classes to ensure the students are socially distant while sitting in rooms and hired additional staff whose sole daily responsibilities are the continual cleaning of the campus facilities, the brief said.

To stem the surge of COVID-19 cases, Beshear ordered last week that schools providing Kindergarten through 12th grade instruction must stop holding in-person classes Monday. Under the order, most schools will not be allowed to reopen until the new semester begins in January. In counties with fewer than 25 cases per 100,000 people, elementary schools will be able to reopen on Dec. 7.

With 2,194 new cases of COVID-19 reported Sunday, Kentucky again broke its record for new cases reported in a week. Large daily increases in cases provoked the new orders from the governor that stopped in-person restaurant dining in addition to in-person school instruction.

Dozens of the governor’s earlier orders to wear masks, limit class sizes in child care centers and other steps were upheld Nov. 12 by the supreme court that said, “the governor’s orders were, and continue to be, necessary to slow the spread of COVID-19.”

Tom Brown, Superintendent of Schools for the Catholic Diocese of Lexington, confirmed Monday that while schools in the diocese are following Beshear’s orders to suspend in-person classes, schools with childcare license will offer childcare and educational experiences for students in K-5.

That includes Catholic schools in Ashland, Paintsville and Richmond, he said.

Preschools at Lexington Catholic elementary schools are operating, because preschools are not covered under the governor’s order, Brown said.

This story was originally published November 23, 2020 at 7:11 AM.