Supreme Court balances religious school closures

For the first time since last March, high school students returned last week to the Charles E Smith Jewish Day School in Rockville, Maryland, for in-person learning, reports Harry Davidson in The Lion’s Tale student newspaper.

Montgomery County officials had asked private schools to restrict in-person instruction—and many did—even though they don’t technically fall under the jurisdiction of the school board. In Kentucky, though, it was the governor who issued a statewide order to close all schools, public and private, and a number of them claimed that order violated their First-Amendment rights.

Gov Andy Beshear ordered all schools in the state, both public and private, to close for in-person instruction on November 18.

Kentucky State Capitol, Frankfort

The order is set to expire, under certain circumstances, for middle and high schools after the new year and for elementary schools earlier this month. But several religious schools filed a lawsuit in federal court, charging the state with violating their right to exercise their religious beliefs without government interference.

A little more than a week after Mr Beshear issued the order to close the schools, the US Court of Appeals for the Sixth Circuit in Cincinnati upheld the executive order, denying the relief sought in a lawsuit filed by 17 Christian schools whose administrators wanted to reopen their classrooms to in-person instruction. The state’s attorney general joined the schools, and the treasurer filed an amicus brief supporting the motion. More than 1,000 parents also backed the schools’ suit.

And then the case went to the Supreme Court, where an unsigned order Thursday evening denied the schools’ appeal, mostly on the basis that it was about to expire and schools would have an opportunity to re-file the motion if the order were extended or reinstated.

Justices Samuel Alito and Neil Gorsuch filed dissenting opinions, arguing that the Court should have acted more quickly when they could still have some effect. “Short-term” edicts such as Kentucky’s effectively evade judicial review.

“As things now stand,” Justice Alito wrote, “this action remains on the docket of the district court. If the governor does not allow classes to begin after the turn of the year, the applicants can file a new request for a preliminary injunction, and if the lower courts do not provide relief, the applicants may of course return to this court.”

At the district court level, the closure of religious schools was blocked, as long as those schools followed hygiene and social distancing orders. The reason for this injunction was that the governor had allowed other gatherings at various businesses, which presented as big a risk as schools, plaintiffs argued.

The Sixth Circuit reversed that decision on the basis that Mr Beshear’s order was neutral and applied to all schools equally. But because the appellate court didn’t consider the more favorable treatment given to secular in-person gatherings, the plaintiffs argued that this resulted in unfair treatment toward religious practices in violation of the Free Exercise Clause.

How can it be fair to allow students to see a movie about crime at a theater but not learn and pray about the greatest story ever told in a school? they argued (I paraphrased a little).

In the end, the Supreme Court simply said there wasn’t time to do anything about this and declined to hear the case. As a result, the decision of the Sixth Circuit stands: Given equal application of school closure orders, assuming other factors, the government can impose these restrictions. Other cases, however, as well as the dissenting opinion in this one, suggest that a different outcome might have resulted, given sufficient time for the Court to make a difference.