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Appeals Court Allows Closure of In-Person Classes at Ky. Private Schools

The United States Court of Appeals for the Sixth District in Cincinnati offered a decision affirming Governor Andy Beshear's recent executive order closing public and private elementary, middle, and high schools in Kentucky.

The decision was released Sunday morning.

Beshear's executive order was in response to escalating COVID-19 cases in the state and was one of several issued in an attempt to slow the rise of coronavirus patients. 

Attorney General Daniel Cameron and a private Christian school in Danville, among other supporters, filed suit against the order and were successful in U.S. District Court, but Beshear appealed to the Sixth Circuit Court of Appeals which decided favorably in his direction.

"Primarily because plaintiffs are unlikely to succeed on the merits of their Free Exercise claim, the preliminary injunction should not have been entered," the appeals court judges wrote. "This is because of the likelihood that our court will rule that the order in question is neutral and of general applicability. The Governor’s motion will therefore be granted."

The Diocese of Covington had announced on Saturday that its schools would be able to return to in-person learning on Wednesday. In Beshear's order, elementary schools would be allowed to reopen to in-person learning on December 7 if the counties in which they are located are no classified as being the COVID-19 red zone, which is designated by an average of 25 or more daily COVID-19 cases per 100,000 population.

All Northern Kentucky counties, and nearly every county across the state, are currently in the red zone.

Middle and high schools are barred from in-person learning through January 4, Beshear's order said. 

"Today, the Sixth Circuit recognized that we must all do our part over the next several weeks to slow this virus," Beshear said in a Sunday morning tweet. "Don’t try to find an exception, do your part to save lives."

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Cameron issued a statement following the favorable ruling from the lower court, before the appeals court ruling.

“The District Court’s ruling was incredibly clear, a religious education is an important component of religious expression and is protected by the U.S. Constitution,” Cameron said. “In a separate case, the U.S. Supreme Court ruled this week that governors cannot impose more stringent restrictions on religious institutions than they do on secular gatherings, which Governor Beshear is currently doing in Kentucky by banning in-person instruction at religious schools.  It’s deeply troubling that, after receiving such rulings, the Governor continues to believe that he can target religious schools and is even claiming that he has the power to suspend state law protecting Kentuckians’ religious liberty.  We’ll continue to take all necessary steps to push back against his unconstitutional actions in court and to defend the religious liberties of all Kentuckians.”

The Sixth Circuit Court of Appeals addressed the recent Supreme Court ruling related to New York by noting that it challenged an order restricting gatherings at places of worship.

"The orders at issue in those cases, applying specifically to houses of worship, are therefore distinguishable," the Sunday ruling noted. "Moreover, the order at issue in (the New York case) treated schools, factories, liquor stores, and bicycle repair shops, to name only a few, “less harshly” than houses of worship. Similarly, the orders at issue in (other cases pertaining to religious liberty related to COVID order) excepted from their requirements airlines, funeral homes, liquor stores, and gun shops, again to name only a few.

"No such comparable exceptions apply to (Beshear's order about public and private schools). And the exceptions expressly provided for in the order—for “small group in-person targeted services” and “private schools conducted in a home”—are nothing like “the four pages of exceptions in the orders” addressed in Roberts. The contours of the order at issue here also in no way correlate to religion, and cannot be plausibly read to contain even a hint of hostility towards religion."

Two of the three judges who decided the case were appointed to the bench by President George W. Bush while the other was appointed by President Bill Clinton.

The legal battle could next proceed to the U.S. Supreme Court.

The full ruling can be read below.

This story may be updated.

-Michael Monks, editor & publisher

Photo: Covington Latin School and the Cathedral Basilica of the Assumption in Covington (RCN file)

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