The Volokh Conspiracy
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From a Kentucky Attorney General opinion released on Aug. 19, but just posted on Westlaw:
Subject: Whether, during the current state of emergency caused by the spread of the novel coronavirus, the Governor, the Cabinet for Health and Family Services, or any other state or local officials may order the closure of religiously affiliated schools that are in compliance with reasonable social distancing and hygiene guidelines set forth by recognized national or international health agencies and organizations.
Syllabus: No. Under the First and Fourteenth Amendments to the United States Constitution, and Kentucky's Religious Freedom Restoration Act, KRS 446.350, the Governor, the Cabinet for Health and Family Services, and any other state and local officials, are prohibited from closing religiously affiliated schools because it does not appear that school closure is the least restrictive means to serve a compelling state interest….
Although life in the Commonwealth has changed, the United States Constitution and the demands of Kentucky law have not. On March 6, 2020, Governor Andrew Beshear declared a state of emergency in response to the spread of the novel coronavirus. Since that time, state and local officials have taken extraordinary measures in an attempt to protect the public health. All of the measures may have been well-intended, but many have been unconstitutional. See, e.g., Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (finding the Governor's ban on drive-in church services unconstitutional); Roberts v. Neace, — F.Supp.3d —-, No. 2:20-cv-054, 2020 WL 2115358 (E.D. Ky. May 4, 2020) (finding the Governor's travel ban unconstitutional); Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, — F.Supp.3d —-, No. 3:20-CV-00033-GFVT, 2020 WL 2305307 (E.D. Ky. May 8, 2020) (granting statewide injunction against of the Governor's prohibition on mass gatherings with respect to any in-person religious service that adheres to applicable social distancing and hygiene guidelines); Ramsek v. Beshear, — F.Supp.3d —, No. 3:20-cv-00036-GFVT, 2020 WL 3446249 (E.D. Ky. June 24, 2020) (finding the Governor's ban on political protests unconstitutional). "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."
During these extraordinary times, on August 10, 2020, Governor Beshear "recommended" that districts delay in-person instruction until September 28, 2020. Now, in a reversal for some, and in response to the Governor's recommendation and pressure from the Department of Education, most public schools are preparing to start the year using non-traditional instruction … rather than in-person instruction.
However, a number of religiously affiliated schools, after a summer of preparation, have chosen to begin in-person instruction. Understandably, religiously affiliated schools and concerned parents wonder whether the Governor, or other state and local officials, may lawfully coopt their informed decisions to reopen for in-person instruction. Specifically, this Office has been asked whether the Governor, the Cabinet for Health and Family Services, or any other state or local governmental agency or official may order the closure of religiously affiliated schools that are in compliance with reasonable social distancing and hygiene guidelines set forth by recognized national or international health agencies and organizations. For the reasons that follow, they may not.
The freedom to practice one's faith is a defining feature of American liberty. "Since the founding of this nation, religious groups have been able to 'sit in safety under [their] own vine and figtree, [with] none to make [[them] afraid."' Tree of Life Christian Schools v. City of Upper Arlington, 905 F.3d 357, 376 (6th Cir. 2018) (Thapar, J., dissenting) (quoting Letter from George Washington to Hebrew Congregation in Newport, R.I. (Aug. 18, 1790)). This is the promise of America. It is one of the Nation's "most audacious guarantees." And that promise extends to the right of Kentucky parents not only to "establish a home and bring up children" and "to control the education of their own," but also to do so in a manner consistent with their faith.
The "American community is today, as it long has been, a rich mosaic of religious faiths." Indeed, "[r]eligious education is vital to many faiths practiced in the United States." … In exercising their First Amendment rights, parents may choose to send their children to religiously affiliated schools instead of public schools. Parents may make that choice because "[m]any such schools expressly set themselves apart from public schools that they believe do not reflect their values." … Accordingly, compulsory-attendance laws have been held unconstitutional where they prevent parents from sending their children to religious schools. And if the state cannot compel children to attend public schools when doing so conflicts with the parents' faith, it follows that the state cannot prohibit children from attending religiously affiliated schools.
Of course, any attempt by the state to prevent parents from sending their children to religiously affiliated schools does not only implicate parents' First Amendment rights. "Such action [also] interferes with the internal governance of the church" in violation of the religious organizations' First Amendment right. The First Amendment "gives special solicitude to the rights of religious organizations." It protects a religious organization's "autonomy with respect to internal management decisions that are essential to the institution's central mission." Thus, a religious organization's decisions about how to teach children—here, whether in-person or by virtual means—is similarly protected by the First Amendment.
Given the central importance of religious education to faith communities, any order by a state or local official to close a religiously affiliated school likely would "prohibit the free exercise" of religion in violation of the First and Fourteenth Amendments, especially if the government continues its arbitrary manner of picking and choosing which institutions must close and which may remain open to the public.
In addition, such an order likely would violate Kentucky's Religious Freedom Restoration Act, which provides that the government may not ""substantially burden" a sincerely held religious belief "unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest." … Closing a school affiliated with a religious organization undoubtedly meets the definition of "burden" ….
Accordingly, the government would be required to prove by clear and convincing evidence that its closure order furthers a compelling governmental interest and is the least restrictive means to further that interest. No one doubts that preventing the spread of Covid-19 is a compelling government interest. But, even amid the current state of emergency, the American Academy of Pediatrics "strongly advocates that all policy considerations for the coming school year should start with a goal of having students physically present in school." Moreover, the Academy has emphasized that "[t]he importance of in-person learning is well-documented, and there is already evidence of the negative impacts on children because of school closures in the spring of 2020." In fact, the Academy has counseled policy makers to "acknowledge that COVID-19 policies are intended to mitigate, not eliminate, risk. No single action or set of actions will completely eliminate the risk of SARS-CoV-2 transmission, but implementation of several coordinated interventions can greatly reduce that risk."
Likewise, the National Academies of Sciences, Engineering, and Medicine recommend that "school districts should prioritize reopening schools full time [[for in-person instruction], especially for grades K-5 and students with special needs." They advise that "[o]pening schools will benefit families beyond providing education, including by supplying child care, school services, meals, and other family supports. Without in-person instruction, schools risk children falling behind academically and exacerbating educational inequities." And, the Centers for Disease Control and Prevention has plainly stated that "[e]xtended school closure is harmful to children," and that "[r]eopening schools creates opportunity to invest in the education, well-being, and future of one of America's greatest assets—our children—while taking every precaution to protect students, teachers, staff and all their families."
Religiously affiliated schools in the Commonwealth have pledged to heed these expert recommendations, and guidance to wear face coverings, wash hands frequently, and maintain social distancing of six feet. For that reason, and considering that various other activities and gatherings may move forward—it is difficult to imagine how closing religiously affiliated schools could pass Constitutional or statutory muster. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728 (2014) ("The least-restrictive-means standard is exceptionally demanding[.]"); Holt v. Hobbs, 574 U.S. 352, 365 (2015) ("[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it."). Thus, state and local officials should carefully consider their specific statutory authority and the compelling interest that requires action, if any, and then implement only the most carefully crafted measures in response to a public health emergency…. "[C]ourts must not accept as sufficient whatever explanation is offered. In exercising its constitutional function, it is not enough to simply 'trust' … that a restriction is necessary or right …. Even in times of crisis, the Constitution puts limits on governmental action." …
Finally, it is axiomatic that if a public official may not do something directly, that same official may not do it indirectly. Although cast as a ""recommendation" to close schools to in-person instruction, there is some indication "that is word play." As is well-documented, government officials have recently stated that there would be "consequences" for those public school boards that chose to ""defy" the recommendation to close schools to in-person instruction. Such comments strongly suggest that should a public school choose to open for in-person instruction, it will be met with pressure to "choose" otherwise. At a minimum, that is unfortunate. But, to the extent a state or local official intends to apply such strong-arm tactics to religiously affiliated schools, that likely would be unconstitutional.
As the Commonwealth continues to grapple with the impact of the coronavirus, it is important to emphasize that "a desirable end cannot be promoted by prohibited means." Perhaps "[a] perfect response would require everyone to stay put and limit contact with everyone else. But that is not the world we live in." Because the words of the Constitution have fixed meanings, the protections that they provide must endure—whether in ordinary or extraordinary times. Maryville Baptist Church, 957 F.3d at 615 ("While the law may take periodic naps during a pandemic, we will not let it sleep through one.")….