Suit Challenges Ohio County's COVID-19 School Closure Order

Three Toledo, Ohio area Christian schools and a state-wide organization of evangelical and Catholic schools filed suit yesterday in an Ohio federal district court challenging a Health Department's COVID-19 Resolution requiring secondary schools to end in-person teaching.  The complaint (full text) in Monclova Christian Academy v. Toledo-Lucas County Health Department, (ND OH, filed 12/7/2020), alleges in part:

If the Resolution is allowed to take effect, on December 4 at 4:00 p.m. in Lucas County, one will still be free to crowd in retail stores, go bowling with friends, go to the movies, attend concerts, go to a hair salon, get a manicure or massage or tattoo, or even go to the casino. Although there are limits and restrictions that govern how such in-person activities must operate, the Resolution has not prohibited them or altered the way in which those groups of people gather or use facilities. Yet, starting on December 4 at 4:00 p.m., Grades 7-12 (or 9-12 depending on school configuration) are strictly prohibited from attending in-person school, even when religious education is a deep and sincere facet of one’s faith, and even when those operating religious schools are abiding by strict social distancing and hygiene standards.

Citizens for Community Values issued a press release announcing the filing of the lawsuit. 

Christian School Asks Supreme Court To Reinstate District Court's Injunction Against Kentucky's COVID Order

The battle continues in Kentucky over Governor Andrew Beshear's COVID-19 Order that prohibits in-person instruction at all public and private elementary and secondary schools. In a suit by Danville Christian Academy-- backed by Kentucky's Attorney General-- the federal district court enjoined the enforcement of the Order against private religious schools which follow other public health guidelines. Last Sunday, the U.S. 6th Circuit Court of Appeals stayed, pending appeal, the district court's preliminary injunction. (See prior posting.) Yesterday the school filed an emergency application with the U.S. Supreme Court asking it to stay the 6th Circuit's order and allow the district court's injunction to go into effect. (Full text of Emergency Application in Danville Christian Academy, Inc. v. Beshear, (Sup. Ct., filed 11/30/20). In accordance with Supreme Court practice, the emergency application was filed with the Justice assigned to the 6th Circuit (Justice Kavanaugh), who may either rule on it or refer it to the full Court. First Liberty issued a press release announcing the filing of the application.

6th Circuit Rejects Preliminary Injunction Against Kentucky's Closure of Religious Schools

In Commonwealth of Kentucky ex rel. Danville Christian Academy v. Beshear, (6th Cir., Nov. 29, 2020), the U.S. 6th Circuit Court of Appeals stayed a federal district court's preliminary injunction against part of Kentucky Governor Andrew Beshear's COVID-19 Order which prohibits in-person instruction at all public and private elementary and secondary schools. The district court had enjoined enforcement of the Order against private religious schools that otherwise follow public health measures. The 6th Circuit, in staying the district court's preliminary injunction pending appeal distinguished the U.S. Supreme Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo, saying in part:

Executive Order 2020-969 applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise; it is therefore neutral and of general applicability and need not be justified by a compelling governmental interest....

Unlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions were “targeted” or “gerrymandered” to ensure an impact on religious groups.... In addition, while many of the houses of worship in Roman Catholic Diocese could seat well over 500 people, they were subject to attendance caps of ten or twenty-five persons, while retail businesses were not.... There is no comparable harsh requirement aimed at religious institutions here.

AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

Kentucky Governor Enjoined From Enforcing Closure of Religious Schools

 In Danville Christian Academy, Inc. v. Beshear, (ED KY, Nov. 25, 2020), a Kentucky federal district court enjoined Kentucky's governor  from enforcing his COVID-19 prohibition on in-person instruction against any religious private school in the state that adheres to applicable social distancing and hygiene guidelines. The court found that the restriction violates the school's free exercise rights, saying in part:

[A]lthough the Governor would like the Court to only compare schools in the context of the executive order and find the order to be one of general applicability, Maryville instructs otherwise. In answering the general applicability question in Maryville, the Sixth Circuit questioned why law firms, laundromats, liquor stores, and gun shops could stay open while churches, despite following CDC-approved guidelines, could not. 957 F.3d at 614. The restrictions which the Sixth Circuit criticized as “inexplicably applied to one group and exempted from another” are similar to those Danville Christian challenges today. This Court wonders why under this executive order, one would be free to attend a lecture, go to work, or attend a concert, but not attend socially distanced chapel in school or pray together in a classroom that is following strict safety procedures and social distancing.... Of even more significance, preschools in the state remain open after this executive order, as do colleges and universities.... The prohibition on in-person teaching is not narrowly tailored as required by Lukumi.

As reported by WKYT News, the state will request an emergency stay of the judge's order from the 6th Circuit.

Kentucky AG Sues Its Governor Over Religious School Closures

Last Friday, Kentucky's Attorney General along with a Kentucky Christian school filed a lawsuit in federal district court against Kentucky Governor Andrew Beshear challenging his recent COVID-19 Order barring schools-- including private religious schools-- from meeting in person. The complaint (full text) in Danville Christian Academy, Inc. v. Beshear, (ED KY, filed 11/20/2020) alleges in part:

The order contains no accommodations for religious education , despite such education being recognized by the Supreme Court as a “vital” part of many faiths... And, like the Governor’s previously enjoined orders, the latest order burdens religious institutions while arbitrarily allowing other gatherings that pose similar health risks to continue.

Regardless of how well-intentioned the Governor might be, his actions violate the federal and state constitutions and Kentucky’s Religious Freedom Restoration Act. His actions also infringe on the autonomy of religious institutions and violate the Constitution’s Establishment Clause.

The Attorney General issued a press release announcing the filing of the lawsuit.

Oregon COVD-19 Limits On Parochial Schools Upheld

The Oregonian yesterday reported on federal district judge's ruling from the bench in Horizon Christian School v. State of Oregon, (D OR, Nov. 17, 2020) denying a preliminary injunction to three Christian schools challenging Gov. Kate Brown’s COVID-19 executive order that limits the schools to remote instruction. According to the report:

Attorney John Kaempf, representing Horizon Christian School, McMinnville Christian Academy and Life Christian School, had urged the judge to halt the governor’s executive order and allow the three schools to reopen with in-person classes and proper safeguards in place.

He argued that gathering communally is a tenet of Catholic education, and not allowing the schools to hold in-person religious classes violates their freedom of religion and expression....

U.S. District Judge Michael W. Mosman said he found it “utterly implausible,” that the governor’s motive behind her executive order was to shut down religious schools.

Previously the court had denied a temporary restraining order in the case. (See prior posting.)

West Virginia Supreme Court Exempts Religious Schools and Camps From Deceptive Practices Ban

 In State of West Virginia ex rel. Morrisey v. Diocese of Wheeling-Charleston, (WV Sup. Ct., Nov. 16, 2020), the West Virginia Supreme Court held that the deceptive practices provisions of the state's Consumer Credit and Protection Act cannot be applied to educational and recreational services offered by a religious institution. It concluded that state statutory provisions protecting religious schools and institutions lead to this result.  It also held that 

the entire relationship between Church and State arising from the Attorney General’s application of the Act constitute an excessive entanglement of  Church and State...

According to the court:

[T]he Attorney General claimed that the Diocese had violated the deceptive practices provisions when it knowingly employed admitted and credibly-accused sexual abusers in its schools and camps but neither disclosed that material information to consumers nor warned them of the alleged dangers inherent to the educational and recreational services it provided. The Attorney General also claimed that the Diocese had made material misrepresentations regarding the safety of those services....

Justice Workman filed a dissenting opinion, saying in part:

The majority opinion is transparently result-oriented which explains its logical incoherence and sins of omission. The issue before the Court is one of fairness and honesty in commercial communications to the public---potential purchasers of goods and services. The fundamental question involves matters of unfair or deceptive acts or practices in advertising or selling and in advertising based on false promises. That is all. Nothing else is at issue. This case has absolutely nothing to do with the free exercise or expression of religious thought and nothing to do with regulating religious institutions in the sense of excessive State entanglement....

In conclusion, the majority opinion slams the door shut on enforcement of even the most blatant unfair or deceptive commercial conduct on the grounds that false or misleading advertising was perpetrated by a religious institution.... Ironically, religious institutions have been given an unfair marketplace advantage with respect to their commercial enterprises. 

AP reports on the decision.

More Litigation Developments In Religious Institution Challenges To COVID-19 Restrictions

Suit was filed last week in an Oregon federal district court challenging Oregon's COVID-19 Orders and guidance that grant small public schools, but not small private or religious schools, an exemption from the ban on in-person instruction. The complaint (full text) in Hermiston Christian Center v. Brown, (D OR, filed 10/16/2020) asserts various 1st and 14th Amendment claims, including the charge that the Orders unlawfully target religious schools. ADF issued a press release announcing the filing of the lawsuit.

Becket announced that it filed suit last week in Lebovits v. Cuomo, (ND NY, filed 10/15/2020). The suit is brought on behalf of two young women and their Orthodox Jewish school.  It challenges New York City's lock down in zip codes in which there are micro-clusters of COVID-19.

Amistad Project announced that it filed suit over the weekend in Libertas Classical Ass'n v. Whitmer, (WD MI), on behalf of a K-12 Christian school in Hudsonville, MI. According to the press release:

... [T]he Whitmer Administration has made repeated, unreasonable demands on the school since September 4, including that kindergarteners always wear masks while in school, including during chapel and outdoor recess....

This violates the First Amendment rights of assembly and religion for the school's 265 students, as well as parents and staff.

In Maryville Baptist Church, Inc. v. Beshar, (6th Cir., Oct. 19, 2020), the U.S. 6th Circuit Court of Appeals refused to allow a church and its congregants to obtain an appellate court ruling on a dispute that had essentially become moot.  In March 2020, Kentucky Governor Andy Beshear had barred all religious services as part of the state's response to the COVID-19 pandemic. Federal courts preliminarily enjoined the ban from going into effect and subsequently the Governor ended the ban. Liberty Counsel issued a press release announcing the decision.

In Gish v. Newsom, 2020 U.S. Dist. LEXIS 192714 (CD CA, Oct. 9, 2020), a California federal district court refused to reconsider its decision upholding the state's COVID-19 Orders that limit indoor religious services.

Vermont's Town Tuition Program Challenged

In Vermont, school districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved private high school. Suit was filed this week in a Vermont federal district court challenging the exclusion of private religious schools from participating in this program, alleging that the exclusion violates free exercise, free speech and equal protection rights.  The complaint (full text) in A.H. v. French, (D VT, filed 9/28/2020) alleges in part:

Denying a public benefit based on the religious status of a child's school penalizes families who choose to exercise their faith by sending their children to religious schools. The school district's denial also discriminates against religious private schools because although the school board categorically refuses to fund tuition to religious schools, it regularly provides such funds to secular private schools. This discrimination violates the Free Exercise Clause's neutrality principle.

ADF issued a press release announcing the filing of the lawsuit.

Parents' Suit Against Christian High School Dismissed On Ecclesiastical Abstention Grounds

 In In re Prince of Peace School, (TX App., Sept. 23, 2020), a Texas state appellate court dismissed on ecclesiastical abstention grounds a suit by parents whose children were expelled from a Lutheran high school after the parents accused school personnel of harassing and bullying their children in connection with disciplinary issues. The court said in part:

Parents’ claims are premised on allegations that Prince of Peace failed to hire qualified staff and appropriately supervise its staff’s interactions with Students, including by failing to report suspected abuse of Students by its staff. Defense of these claims rests on Prince of Peace’s internal and religiously-informed policies and code of conduct. Judicial resolution of the claims would thus require impermissible intrusion in Prince of Peace’s management of these matters.

California Christian School Must Abide By COVID-19 Restrictions

 In County of Fresno v. Immanuel Schools, (CA Super. Ct., Sept. 15, 2020), a California state trial court judge issued a preliminary injunction ordering a 600-student Christian school near Fresno, CA to cease holding in-person classes as required by state and local COVID-19 orders. The court said in part:

United States Supreme Court Chief Justice John Roberts has observed in a recent consequential concurring opinion that “[t]he precise question of when restrictions on particular’social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ When those officials ‘undertake[] to act in areas fraught with medical and scientific uncertainties,’ their latitude ’must be especially broad.’” (South Bay United Pentacostal Church V. Newsom (2020)....

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Kentucky AG Says Closing Religious Schools In COVID Pandemic Is Unconstitutional

Last month, Kentucky's Attorney General issued Opinion OAG-20-13 (Aug. 19, 2020) concluding that state or local officials may not order the closure of religiously affiliated schools that comply with reasonable social distancing and hygiene guidelines during the COVID pandemic. The Opinion says in part:

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. U.S. Const. amends. I, XIV.

In addition, such an order likely would violate Kentucky’s Religious Freedom Restoration Act, KRS 446.350, 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.”...

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....

[Thanks to Eugene Volokh via EpidemicLaw for the lead.]

Oregon's COVID-19 Limits On Religious Schools Upheld

 The Oregonian reports that on Aug. 20, an Oregon federal district court in Horizon Christian School et al v. State of Oregon denied a request for a temporary restraining order to allow three Christian schools to reopen in violation of Gov. Kate Brown's COVID-19 executive order.  In what was apparently an opinion delivered orally from the bench, the court said in part:

In my view the religious institutions here in K-through-12 aren’t being treated in any way differently than public K-through-12 institutions...

The harm the state is trying to prevent is death and not just death as in a few, but the possibility of a widespread pandemic killing our most vulnerable citizens...

Specified Alabama Religious Schools and Church Can Create Their Own Police Forces

As reported last week by WBRC, Birmingham, Alabama's Briarwood Presbyterian Church has issued a press release expressing appreciation for the Governor's recent signing of HB 309 (full text) which adds Madison Academy  and Briarwood Presbyterian Church and its integrated auxiliary Briarwood Christian School to the list of colleges that can create their own police forces.  Both of the added schools are preK-12 Christian schools. According to MSN News, the Alabama ACLU is concerned that this could give the schools the ability to avoid reporting to outside authorities criminal activity that takes place on their premises. [Thanks to Tom Rutledge for the lead.]

NY Guidelines For Yeshiva Educational Requirements Are Struck Down

Yesterday a New York state trial court judge struck down the state's controversial Guidelines adopted last year aimed at  assuring that yeshivas, as well as other non-public religious and independent schools, comply with state law requiring them to offer an education substantially equivalent to that of public schools. (See prior related posting.) In Parents for Educational and Religious Liberty in Schools v. Rosa, (Albany Cty. Sup. Ct., April 17, 2019), the court held that the education commissioner did not comply with the notice and comment requirements of the State Administrative Procedure Act in adopting the Guidelines. Gothamist reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Yeshivas Sue In Challenge To New York's "Substantial Equivalency" Guidelines

Yesterday, a group of yeshivas, parents and other Orthodox Jewish organizations filed a state-court lawsuit challenging the New York State Education Department's recently adopted Substantial Equivalency Review and Determination Process. The new regulations are aimed at assuring that yeshivas, as well as other non-public religious and independent schools, comply with state law requiring them to offer an education substantially equivalent to that of public schools.  (See prior posting.)  The 50-page complaint (full text) in Parents for Educational and Religious Liberty In Schools, (Sup. Ct. Albany Cty. NY, filed 3/7/2019), alleges in part:

the NYSED’s New Guidelines would effectively frustrate the Petitioners’ constitutionally protected right to the free exercise of religion through a series of onerous requirements; would effectively frustrate the Petitioners’ constitutionally protected free speech rights by dictating what can and cannot be taught in yeshivas; would effectively frustrate the Petitioners’ constitutionally protected due process right to control the upbringing and the education of their children, as recognized by Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923); and would hamper and inhibit the educational system that is central to Petitioners’ way of life, raising issues similar, and relevantly indistinguishable, to those addressed by the United States Supreme Court in Wisconsin v. Yoder, 406 U.S. 205 (1972).

The suit challenges the Guidelines on other state law grounds as well. Yeshiva World reports on the lawsuit.

Canadian Suit Challenges Failure of Hasidic Schools To Follow Provincial Curriculum

CBC reports that a trial date has been set for a year from now in a case filed in 2015 challenging the failure of Hasidic Jewish schools to comply with the curriculum set by education authorities in the Canadian province of Quebec. Plaintiff Yohanen Lowen and his wife Shifra allege that when Yohanen graduated high school at age 18, he could barely add and subtract, he could not read and write in English or French, and he was unequipped to find employment. The lawsuit was brought against both the Quebec Education Ministry and Hasidic schools in a secluded ultra-Orthodox community near Montreal.

Cert Petition Filed In RLUIPA Suit By Christian School

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Tree of Life Christian Schools v. City of Upper Arlington, Ohio. In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that a private Christian school had failed to establish a prima facie case that denial of zoning approval for its proposed new location violates the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  ADF issued a press release announcing the filing of the petition for review.

Challenge To NY Favoritism of Yeshivas Dismissed For Lack of Standing.

In Young Advocates for Fair Education v. Cuomo, (ED NY, Jan. 16, 2019), New York federal district court dismissed for lack of standing and ripeness a challenge to the constitutionality of the "Felder Amendment" which plaintiff claims was designed to reduce the level of secular education that needs to be offered by Hasidic Jewish schools in New York. Plaintiffs alleged that the Felder Amendment creates an unconstitutional preference for Hasidic Jewish schools. While not reaching the merits, the court suggested that state regulations may have made standards for religious schools more rigid. Yeshiva World reports on the decision.

Leading Hasidic Rabbi Defies New York Regulations On Yeshiva Curriculum

As previously reported, last month the New York State Education Department issued new guidelines for review of the curriculum of non-public religious and independent schools, under statutory provisions that primarily impact Hasidic Jewish yeshivas. The Forward reported last week that a leading Hasidic rabbi, Satmar Rebbe Aron Teitelbaum, is defying the New York City and New York State Education Departments, telling his followers in a speech:

We will not comply and we will not follow the state education commissioner under any circumstances. These are our words for the state education commissioner.