FRANKFORT, Ky. — The Supreme Court has denied the Kentucky attorney general's appeal to stay Gov. Andy Beshear's order that all schools in the commonwealth -- including religious schools -- operate remotely until January.
Kentucky Attorney General Daniel Cameron took the case to the high court after a panel of three federal judges ruled Beshear's order -- which applied equally to public and private schools -- was constitutional. Previously, U.S. District Judge Gregory F. Van Tatenhove ruled Beshear did not have the authority to order religious schools to operate remotely.
The court said in an unsigned opinion Thursday that Beshear’s order will effectively expire at the end of the week anyway because schools are about to begin their Christmas vacation and can open again in early January. A ruling against the state “would have little practical effect,” the court said.
Beshear commented Thursday on the Supreme Court's ruling during his routine COVID-19 update.
"We didn’t close any school; we just moved them to online virtual instruction, and I think that’s important, because suggesting a school is closed suggests the educators aren’t working with students to provide the best experience possible, and they are doing a heck of a job," he said. "In no way were religious schools treated any differently. We asked everybody to make the same sacrifice."
Ken Katkin, a constitutional law expert and professor at NKU’s Chase College of Law, said the highest court in the land will leave the Sixth Circuit's decision standing because, in their eyes, an 11th-hour injunction is an unnecessary headache.
"The Supreme Court said if they would make a ruling now, it would only affect one day of classes tomorrow. That would cause so much chaos, it's not worth making a ruling about one way or the other,” he said.
The original case, still in district court, argues that the governor's order violates constitutional rights.
“The interesting thing about this case right now is that I think we're in a transitional period on the court in terms of which rule they think is the right rule,” Katkin said.
A key to the case itself will be whether a Supreme Court ruling from 1990, which says religious institutions aren't exempt from rulings like this, is overturned or upheld.
"For the last 30 years, the rule has been that they don't get an exception, but I think this term may be the term the Supreme Court's going to change that rule,” Katkin said.
But cases where religious groups might hope for an exemption could be defeated when there is a compelling government interest like public health, he said.
The order went into effect Nov. 23 and mandates that all Kentucky high schools and middle schools cease in-person learning until Jan. 4, 2021. Elementary schools could reopen Dec. 7 if their county was no longer in the red zone on Kentucky's COVID-19 incidence rate map.