alt=Kelsey DallasKatie Robinson cried happy tears last month when her 5-year-old daughter returned home from her first day at the private, religious school near their home in Louisville, Kentucky.
After weeks of complaining about the online instruction offered by the public school she had been enrolled in, the kindergartener was finally smiling and excited to talk about what she’d learned.
“It was like a light turned on inside her,” Robinson said.
But almost as soon as the light appeared, new restrictions on in-person learning threatened to put it out.
In late November, Kentucky Gov. Andy Beshear, a Democrat, ordered all schools to temporarily move online due to a surge in COVID-19 cases. Elementary schools in the state will have an opportunity to reopen as soon as Monday if they’re located in an area with a low infection rate, but middle and high schools must remain closed until at least Jan. 4.
“It’s very disappointing,” said Robinson about the governor’s order. “I don’t feel like this is what’s best for our children.”
Neither do many religious school leaders in Kentucky and across the country, which is why they’re fighting closure orders in court. But rather than building their lawsuits around their concerns about students’ education, they’re suing government officials on religious freedom grounds.
“We’re primarily relying on the First Amendment’s protection of the free exercise of religion,” said Roger Byron, senior counsel for First Liberty Institute, about one such case.
Unequal treatment?
Although recent lawsuits brought by religious schools stem from a wide variety of government actions, nearly all involve the same legal claim. The schools assert that in-person instruction on their campuses is a religious activity and, therefore, it can’t be disrupted unless similar secular activities are halted as well.
Previous rulings in First Amendment cases have established that “the government cannot treat religious activities less favorably,” said Byron, who represents Danville Christian Academy in Danville, Kentucky, in its challenge to Beshear’s order.
If that argument sounds familiar, it’s because the Supreme Court said as much in a Nov. 25 ruling overturning pandemic-related restrictions on houses of worship in New York.
Justices ruled 5-4 that the state violated religious freedom protections by putting strict limits on attendance at religious gatherings, while allowing secular businesses to decide for themselves how many people to admit.
“The regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment,” the majority opinion said.
Byron believes that the Kentucky governor’s order is similarly unlawful since it treats religious schools differently than other places groups of people gather, such as movie theaters and stores.
“People can gather at weddings, concerts, funerals and movies, but not at K-12 religious schools,” he said, adding that preschools and universities are also free to stay open.
However, some legal experts believe Byron and others involved in religious school cases are drawing the wrong comparison.
What matters is whether private, religious schools are treated the same under the law as other K-12 schools, not whether they’re treated the same as supermarkets or theaters, argued a Nov. 29 ruling from the 6th Circuit Court of Appeals upholding Beshear’s order.
“The court said the order was OK since it closed all K-12 schools across the board for a set period of time,” said Holly Hollman, general counsel and associate executive director of the Baptist Joint Committee for Religious Liberty. “Like things were treated alike.”
Other courts issued similar rulings earlier this fall as religious schools across the country fought to stay open.
Government officials must be given some latitude to do what they think is best to promote public health, wrote one California judge in a September ruling against Immanuel Schools, a Christian institution in Reedley, California, that defied a closure order.
That judge cited a previous Supreme Court decision to justify his approach. Before the justices’ Nov. 25 decision in favor of New York churches, they had twice ruled against houses of worship challenging pandemic-related restrictions in cases originating in California and Nevada.
Those previous rulings were handed down before Justice Ruth Bader Ginsburg’s death in September and Justice Amy Coney Barrett’s subsequent confirmation to the court.
Some members of the Supreme Court remain unconvinced that efforts to control the spread of COVID-19 at religious institutions represent a threat to the First Amendment.
“States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today,” wrote Justice Sonia Sotomayor in her dissent to the court’s Nov. 25 ruling.
Seeking relief
Religious schools have had success in cases where they could identify similarly situated public schools that the government was treating differently.
For example, in Oregon, state officials issued new education regulations after Hermiston Christian School, which is located near the state’s border with Washington, pointed out that small public schools, but not small private ones, were given the opportunity to apply for permission to reopen this fall.
“Religious schools were really being targeted,” said Ryan Tucker, senior counsel and director of the Center for Christian Ministries at the Alliance Defending Freedom, which represents Hermiston in an ongoing lawsuit over other reopening restrictions.
Byron does not believe that a religious school has to find unequal treatment of similarly situated schools in order to succeed in court. What matters is whether government officials allow the activities that take place in religious schools, such as students sitting together at desks, to take place in other settings, he said.
The question is whether activities “that pose the same or similar health risks” are treated differently under the law, he said.
In Kentucky, he believes that they are, which is why Danville Christian School appealed to the U.S. Supreme Court on Monday. School officials are asking the justices to overturn the 6th Circuit’s ruling and allow students to return to class.
“The governor ... has extended favorable treatment to a wide assortment of secular gatherings without providing any explanation why religious schools do not also receive such favor,” the school’s application to the Supreme Court argues.
Byron hopes the justices will act quickly on behalf of religious schools in Kentucky, just as they acted on behalf of houses of worship in New York.
“These schools have extensive safety protocols in place. They’re looking forward to having students back in school where they are safe,” he said.
Similarly, Robinson longs for the day when her daughter can return to the school that made her smile.
“We are not designed to be sitting in front of a computer all day,” she said.