WASHINGTON (CN) — Timing is everything, the U.S. Supreme Court said Thursday, denying a Kentucky Christian school’s lawsuit to enjoin a governor’s order halting in-person learning, because of when the order is due to expire.
“The Governor’s school-closing Order effectively expires this week or shortly thereafter and there is no indication that it will be renewed,” an unsigned order for the court states.
Both Justices Samuel Alito and Neil Gorsuch penned dissents, Alito writing that no one should misinterpret the denial as an approval of the Sixth Circuit’s decision.
“As I understand this court’s order, it is based primarily on timing,” Alito wrote. “At this point, just a few school days remain before the beginning of many schools’ holiday break, and the executive order in question will expire before classes would normally begin next year.”
In its brief to the court, Danville Christian Academy Inc. argued in-person restrictions due to Covid-19, which killed over 3,600 people in the U.S. yesterday, were unfairly applied to religiously focused learning centers.
“The First Amendment does not include an escape hatch for the government when it can ‘point out that, as compared to [religious institutions] some secular businesses are subject to similarly severe or even more severe restrictions,’” the school’s brief states.
Daycares, preschools, colleges and other learning institutions like universities were still open, along with gambling parlors and fitness centers.
“Houses of worship in Kentucky also remain open for in-person activities – other than religious schooling – due to earlier court rulings,” the school’s brief states.
Alito notes in his dissent that Danville Christian Academy Inc. filed its brief with the high court just two days after Kentucky Governor Andy Beshear issued executive orders to restrict indoor gatherings and shutter in-person learning.
Additionally, when the Sixth Circuit granted the stay order to allow classes to continue, the school filed only two days later seeking the same relief.
“It is hard to see how they could have proceeded more expeditiously,” Alito wrote.
He added: “If the Governor does not allow classes to begin after the turn of the year, the applicants can file a new request for preliminary injunction, and if the lower courts do not provide relief, the applicants may of course return to this court.”
The state argues K-12 education “presents a perfect storm of factors” that combine to germinate risk to public health. In summary, school age children struggle to keep their masks on or respect preventative measures throughout a day’s entirety — and masks have to be removed to eat lunch, which children do every day in the same building.
“Against all that, but without any scientific testimony in the record that supports their position, plaintiffs ask this court to find as a factual matter that three categories of lesser-regulated activity in Kentucky present equal or comparable public health risks to in person K-12 education in the next five weeks,” the brief states.
In his dissent, Gorsuch wrote the Sixth Circuit’s decision that the governor’s executive order treated religious and secular schools the same was flawed. Neutrally and generally applicable laws were subject to strict scrutiny, Gorsuch wrote, and the court had an obligation to consider whether both executive orders constituted unconstitutional discrimination.
“The [Executive Orders] remain in force, the dispute over them remains live, and the decision allowing them to stand is flawed,” Gorsuch wrote. “Nothing prevents us from saying so; no one attempts to suggest this case is moot; and the applicants are entitled to a fair assessment of their rights under accurate legal rules.”