Amicus Brief
Amicus Brief
Amicus Brief
Amici file this brief in support of the Plaintiff’s Motion for a Temporary
Restraining Order and the Plaintiffs’ request for this Court’s ruling to apply
statewide. Each of the amici have been forced to close to in-person classroom
Christian Academy (in Bowling Green), Heritage Christian School (in Owensboro),
Lexington Latin School, Somerset Christian School, Summit Christian Academy (in
Lexington), and Trinity Christian Academy (in Lexington) (the “Religious Schools”)
are private, religious schools throughout the Commonwealth that have been
offering safe in-person instruction in compliance with the Centers for Disease
Control and Prevention (“CDC”) social distancing guidelines since the start of the
academic year. The Religious Schools have followed the Governor’s and the
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substantial fiscal investment, which the schools gladly took to ensure the safety of
faculty, staff, parents, and students have done everything asked of them to remain
Christianity, all the Religious Schools agree that “educating young people in their
faith, inculcating its teachings, and training them to live their faith are
responsibilities that lie at the very core of [their] mission.” 2 Like Danville Christian
Academy, all the amici Religious Schools believe that fulfillment of these
substantially burdens the free exercise of religion for each of the Religious Schools.
Like Danville Christian Academy, each of the Religious Schools desires to continue
Moreover, if the CDC were to revise its guidelines so that more is needed from the
Religious Schools, the Religious Schools would follow those guidelines if possible.
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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. For example,
distancing screens and barriers, thermometers, additional desks and tables, Wi-Fi,
signage, and medical supplies. To that end, Trinity Christian Academy in Lexington
$392,000. Others like Somerset Christian School hired additional faculty to add
classes to ensure the students are socially distant while sitting in class and hired
additional staff whose sole daily responsibilities are the continual sanitizing of the
campus facilities.
absolutely no evidence that the current practices of the Religious Schools are
unsafe. Nor is there any evidence there will be widespread outbreaks of COVID if
guidelines. No evidence whatsoever has linked any current increase in COVID cases
to numbers in schools. In fact, on November 19, 2020, one day after the Governor’s
Executive Order, CDC Director Dr. Robert Redfield announced that schools do not
need to be closed and that schools are among the safest places for children to be
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during the coronavirus pandemic. Dr. Redfield stated: “[t]here is extensive data
[that] confirms...K-12 schools can operate with face-to-face learning and they can do
it safely and they can do it responsibly.” 3 And, all these schools closed down entirely
back in the spring, and remained closed all summer, so there is nothing to support
the assumption that if they close now, COVID numbers will suddenly go down.
ARGUMENT
The Religious Schools explicitly adopt all aspects of the arguments of the
Danville Christian Academy and the Attorney General. The Governor’s Executive
Order impermissibly burdens religious exercise and the other constitutional rights
of private, religious schools in Kentucky. True, the Governor has the best of
intentions to protect public health - an interest amici share and have demonstrated
over the last eight months through countless efforts to secure their own school
facilities, staff, faculty, and students, and the monies they have spent to that
endeavor. But the Governor has not pursued any compelling interest through the
least restrictive means as the Constitution requires. The reality is the Governor’s
public policy choice – shut down in-person learning to reduce the spread – has no
basis in the science of the virus or the social science of how children learn and
develop. The Religious Schools make five points that reinforce the arguments of the
3 https://www.c-span.org/video/?c4924557/cdc-director-redfield-data-supports-face-
face-learning-schools.
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body of research in the U.S. and Europe finds that because of safety procedures,
the “infection positivity rates of students at schools with in-person learning were
generally lower than the rates in the surrounding community.” 5 In New York City,
“[t]ens of thousands of children and staff have been tested for Covid-19, with a
reported case rate of only 0.19%. The school system is thus 15 times as safe as the
city at large, so it makes little sense to close the schools to fight a rising second
wave of infection.” 6
Although the United States lacks a national tracking system for school-based
cases, Spain’s decision to keep schools open during the nation’s second wave did not
instruction. “The World Health Organization advises that there have been only
4 Leslie Brody & Yoree Koh, Why Some Schools Close as Covid-19 Cases Rise When
Others Stay Open, WALL STREET JOURNAL (November 19, 2020) (available at
https://www.wsj.com/articles/why-some-schools-close-as-covid-19-cases-rise-when-
others-stay-open-11605789414).
5 Id.
6 Seth Barron, School’s Out for Autumn in New York, WALL STREET JOURNAL
(November 20, 2020) (available at https://www.wsj.com/articles/schools-out-for-
autumn-in-new-york-11605910005).
7 Brody and Koh, supra, note 5.
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In contrast, the Governor has not pointed to any evidence justifying his decision to
close the Religious Schools. The Religious Schools simply ask that they be allowed
to continue doing what they have been doing since the start of the academic year
and what the experts say is the best for the students.
to operate and offer in-person instruction, but elementary schools cannot. Thus,
those Religious Schools that operate both an in-person elementary school and an in-
person pre-school day care center will have to close the former but can operate the
latter. A parent who has both a six-year-old and a four-year-old cannot send the six-
year-old to school but can send the four-year-old to pre-school. That makes no
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sense. 10 Moreover, some licensed childcare facilities are offering in-person childcare
for school age children that simply amounts to the supervision of virtual instruction
inconsistent Executive Order despite that it involves the same types of in-person
example, the Governor has declared that college sporting events are exempt from
his order if the organizers follow social distancing practices. Therefore, the
University of Kentucky will be able to have 3,000 people (15% capacity) in Rupp
Arena for college basketball games, but the Religious Schools must close. Similarly,
cinemas will be able to offer in-person movies where twenty-five total strangers sit
in a room for two hours. While the Religious Schools do not doubt the ability of the
University of Kentucky to safely have fans in Rupp Arena or for cinemas to have
twenty-five total for a movie, the reality is there is no evidence as to the safety of
these activities. In contrast, the Religious Schools, which generally have classes
well below twenty-five students and where the students are around the same people
10 Indeed, such arbitrary distinctions would not even survive rational basis review,
let alone the strict scrutiny applied to the free exercise of religion.
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every day, as opposed to having contact with thousands of strangers, have proved
As cited above, the day after the Governor’s Executive Order, the CDC
announced schools should remain open and are among the safest places for children
right now, all of which the CDC says is supported by “extensive data.” Research
poses minimal risks for children, who are less likely to contract or transmit COVID-
19.
Center found that only 48.5% of virtual schools received acceptable performance
ratings, with an average graduation rate of 50.1%, “far short of the national average
K-3, children are still developing the skills to regulate their own behavior, emotions,
11Alex Molnar, Nat’l Educ. Pol’y Ctr., Virtual Schools in the U.S. 2019, at 9 (May
2019), https://bit.ly/33YNJ7I.
12James L. Woodworth et al., Ctr. for Research on Educ. Outcomes, Online Charter
School Study 23 (2015), https://stanford.io/34gu2sj.
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and attention, and therefore struggle with distance learning.” 13 Most distance-
unique burdens upon single parents or low-income families with two working
parents, and on families with limited internet access which is the case for many in
Most distance learning also requires increased “screen time” that has proven
spent more than two hours a day on screen-time activities scored lower on language
and thinking tests,” and children who spent more than seven hours a day on a
screen “experienced thinning of the brain’s cortex, the area of the brain related to
The problems with distance learning apply with equal or greater force to
religious instruction is infused throughout the school day, including during non-
instructional time. Teachers and staff model religious behavior inside and outside
the classroom, in the lunchroom, and on the playground and playing fields.
13News Release, Nat’l Acads. of Scis., Eng’g, & Med., Schools Should Prioritize
Reopening in Fall 2020, Especially for Grades K-5, While Weighing Risks and
Benefits (July 15, 2020), https://perma.cc/6QHC-4FYV.
14See, e.g., 2015 Mathematica Policy Research Report (showing that 78 percent of
online charter elementary schools “expect parents to actively participate in the
student’s instruction”) Brian Gill et al., Mathematica Pol’y Research, Inside Online
Charter Schools 22- 23(Oct. 2015), https://bit.ly/2Y52F0p.
15Jennifer F. Cross, What Does Too Much Screen Time Do to Children’s Brains?,
Health Matters (2020), https://bit.ly/3mrTUYK.
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scripture study, and religious education, all of which are foundational to concepts
and doctrines of Christian community. These are just some of the many aspects of
disaster that has been terrible for children due to technological problems, limited
student engagement, and screen time vastly exceeding what health experts
resulting from schools’ transition to distance learning in the spring of 2020. The
after surveying 477 school districts that provided distance learning as a result of
the pandemic: “[J]ust one in three districts expect teachers to provide instruction,
track student engagement, or monitor academic progress for all students…. Far too
many districts are leaving learning to chance during the coronavirus closures.” 17
Another study found that due to school closures in the Spring of 2020, students’
gains in reading relative to a typical school year,” and only “37–50% of the learning
16Bethany Mandel, ‘Remote Learning’ is a disaster, and terrible for children, THE
NEW YORK POST, (Sept. 16, 2020), https://bit.ly/3hZ2vOY.
17 Betheny Gross & Alice Opalka, Ctr. on Reinventing Pub. Educ., Too Many
Schools Leave Learning to Chance During the Pandemic, at p. 1 (June 2020),
https://bit.ly/3kesOSS.
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gains in math.” 18 Yet another study found that students who receive online learning
during the upcoming fall semester will lose “three to four months of learning” by the
CDC. 20
Dr. Anthony S. Fauci, the Director of the National Institute of Allergy and
Infectious Diseases, encouraged that the “default position should be to try, as best
as you possibly can, to open up the schools for in-person learning … because of the
psychological benefit and in some places, even for the nutrition of children[.]” 21
because “[s]chools play a critical role in supporting the whole child, not just their
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the amici are deeply concerned that the secular state (via the Governor’s office) is
choosing which methods are best for accomplishing their religious mission. And the
method the Governor has imposed on the Religious Schools is not sufficiently
amici schools’ free exercise of religion. Their mission is to teach students what it
means to be a disciple of Jesus Christ, not only through classroom education, but
also through prayer, worship, and religious formation that occurs in-person. The
Religious Schools firmly and sincerely believe the Bible requires Christians to
gather together in order to practice the Christian faith and to learn how to be a
disciple of Jesus Christ, and that much of Christian formation occurs through
Christian community. For instance, these schools have devotions and services which
Amici believe they cannot effectively provide a Christian education to their students
if the students are not able to meet in-person. Amici teachers, staff, and students
engage in prayer daily. These times of prayer allow students to share their worries
and fears with teachers, and to receive encouragement and religious formation
distance learning environment. Yet the Governor’s Order dictates to the Religious
22Ctrs. for Disease Control & Prevention, The Importance of Reopening America’s
Schools This Fall, https://perma.cc/6ZUL-6EQA.
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Schools which methods they must use in carrying out their mission and developing
Christian community.
minded governmental official in the world. But the Constitution provides limits
even when the outcome is difficult or unpopular. “It would be easy to put [the
Constitution] on the shelf in times like this, to be pulled down and dusted off when
more convenient. But that is not our tradition. Its enduring quality requires that it
provide religious instruction to its students, the right of parents to pursue religious
education for their children, and the right of students to receive religious
instruction. The Executive Order is not generally applicable because it does not
apply to equivalent operations where persons outside of one household are inside
such as preschools, movie theaters, college basketball arenas and shopping malls.
Of course the Governor has an interest in safeguarding public health generally, but
that interest must specifically and narrowly apply to the closure of in-person
attendance at private, religious schools and it fails to do so. The U.S. Supreme
Boston 24 is instructive on this point. In that case, the Court did not evaluate the
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group. 25 There, as here, the apparent purpose of applying the law under those
religious schools to close when so many exceptions are made for other places where
the public can gather. By allowing these exemptions, the Governor has
unprohibited.” 28
The closing of private, religious schools is also not narrowly tailored to the
state’s interest in preventing the spread of COVID-19. The CDC, the AAP, and
other public health organizations have endorsed in-person instruction for the 2020–
21 school year, and have outlined measures that would ensure public safety while
education. The state itself has crafted social distancing guidelines and other
25 Id., at 578.
26 Id.
27 Id.
28 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547
(1993) (quotation marks and alterations omitted).
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others, are more narrowly tailored than the blanket closure order imposed here.
Special exceptions and less restrictive regulations imposed on other public places,
Court should enter judgment in favor of Plaintiffs and declare that the Executive
Order closing private, religious schools violates the First Amendment to the United
group and exempted from another do little to further these goals and do much to
burden religious freedom.” 29 The Sixth Circuit previously affirmed this Court’s
Assuming all of the same precautions are taken, why is it safe to wait
in a car for a liquor store to open but dangerous to wait in a car to hear
morning prayers? Why can someone safely walk down a grocery store
aisle but not a pew? And why can someone safely interact with a brave
deliverywoman but not with a stoic minister? 30
In that same vein, assuming these religious schools are following all the CDC
recommended precautions, why is it safe to go to the theater and watch a movie, but
29 Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 614–15 (6th Cir. 2020).
30 Id.
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not school and hear religious instruction? Why can someone safely sit at an office
desk but not a school desk? Why can someone safely interact with a store clerk but
not their teacher? As before the Sixth Circuit earlier this year, “[t]he
Commonwealth has no good answers. While the law may take periodic naps during
And it is no answer for the Governor to argue since all schools are closed,
closing religious schools does not burden religious exercise in violation of the
Constitution and the Kentucky RFRA. The appropriate inquiry is not whether all
schools are closed. 32 Instead, the inquiry is why religious schools are placed in the
In making that analysis, the Court should answer four questions: (1) does
this Executive Order favor some organizations?; (2) are religious organization in the
disfavored category?; (3) why?; and (4) is that reason a sufficient justification for the
differential treatment and the disfavoring of religion? This Executive Order clearly
creates two categories of public places. Some places are allowed to remain open:
retail stores, business offices. But some places must shut their doors: restaurants,
31 Id.
32Laycock & Collis, Generally Applicable Law and the Free Exercise of Religion, 95
NEB. L. REV. 1, 22 (2016) (The inquiry “is not whether one or a few secular analogs
are regulated. The question is whether a single secular analog is not regulated”).
33Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 884
(1990) (“where the State has in place a system of individual exemptions, it may not
refuse to extend that system to cases of religious hardship without compelling
reason”). Moreover, “Smith involved government regulation of only outward
physical acts,” but this case “concerns government interference with an internal
church decision that affects the faith and mission of the church itself.” Hosanna-
Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 190 (2012).
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schools. Churches may remain open. Preschools may remain open (including
preschools located at these amici). But K-12 private religious schools must close to
in-person education.
The Governor has provided no reason for the restrictions placed on religious
schools. There is no evidence or logic why these restrictions are necessary for
religious schools, especially with a several month history of the lack of any COVID
spread from CDC-compliant schools like Plaintiff, amici, and scores of others in
Kentucky. The Executive Order shuttering religious schools does not even pass a
rational basis review, let alone the strict scrutiny applied under the First
For the reasons above and those stated in the briefs of Danville Christian
Academy and the Attorney General, the Motion for Temporary Restraining Order
should be granted.
Respectfully submitted
and
Gregg Thornton
Ward, Hocker & Thornton PLLC
Vine Center
333 West Vine Street, Suite 1100
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