Beshear, a Democrat, issued an executive order earlier this week halting in-person learning at K-12 public and private schools across the state beginning Monday, among other restrictions.
The order would keep middle and high school students in remote learning until at least January 4. It would allow for elementary schools to reopen December 7, so long as the school is not in a "Red Zone County" as determined by the Kentucky Department of Public Health's standards and adheres to other state guidance.
But on Friday, Kentucky Attorney General Daniel Cameron announced he would join a private Christian school, Danville Christian Academy, in a lawsuit against Beshear, arguing the governor's order is unconstitutional because it would prevent religious organizations from providing private education.
"The ability to provide and receive a private religious education is a core part of the freedoms protected by the First Amendment," Cameron, a Republican, said in a statement. "Religiously affiliated schools that follow recommended social-distancing guidelines should be allowed to remain open."
The lawsuit asks the US District Court for the Eastern District of Kentucky to hold an emergency hearing before Monday to issue a statewide temporary restraining order to prevent Beshear's order from taking effect.
The lawsuit comes as more communities and states implement Covid-19 restrictions -- including school closures -- amid a nationwide coronavirus surge. As of Saturday evening, Kentucky had reported 152,206 cases of Covid-19, according to data from Johns Hopkins University. More than 1,700 people have died in the state.
Beshear announced the new restrictions on Wednesday, a day after the state recorded a record 33 Covid-19 deaths. Other restrictions that went into effect Friday evening include limits on restaurants and bars, private social gatherings, gyms and event venues.
A spokeswoman for the governor pointed out the state Supreme Court recently ruled unanimously in Beshear's favor in another case over Covid-19 orders. CNN affiliate WLKY reported the court upheld the governor's mandates, finding he was within his constitutional authority to issue them.
"The Governor has followed the advice of the Centers for Disease Control and Prevention, the White House Coronavirus Task Force and public health experts," spokeswoman Crystal Staley said in a statement, "and many other Governors across the country are taking similar actions to protect the health and lives of children and families."
Staley noted the state's 9% test positivity rate this week, 112 counties in the "red zone" and about 10,000 students and school staff who have had to quarantine. She added that the state lost a teacher and its first student, a 15-year-old girl, to the virus this week.
"The attorney general should stop playing politics and instead help Kentuckians understand what it takes to defeat this virus," Staley said.
School using 'rigorous protocols' for in-person learning, lawsuit says
Danville Christian Academy -- a school of 234 students, per the lawsuit -- has spent between $20,000 and $30,000 implementing "rigorous protocols" to safely provide in-person instruction, Cameron's statement says.
Those protocols include two temperature checks when students enter the school and requiring masks when students enter, exit or move about the school, among others. The mask requirements don't apply to pre-schoolers and students are allowed to remove their masks when seated at their desks.
Earlier this month, the school halted in-person instruction for ten days after a teacher and three students tested positive for Covid-19, the lawsuit says.
The lawsuit also takes issue with the allowances made for other facilities like restaurants and office spaces in Beshear's other order while closing schools.
"If it is safe for individuals to gather in venues, shop in stores, and work in office environments," Cameron asked in his statement, "why is it unsafe for Kentucky schools to continue in-person operations while applying the same safety protocols?"
Danville Christian Academy is being represented by several attorneys from the First Liberty Institute, including Roger Byron, who called Beshear's restrictions "blatantly unconstitutional" in a statement while praising Cameron's defense of religious liberty.
The statement also pointed to comments recently made by CDC Director Dr. Robert Redfield, who has said schools are among the safest places for children.
"Today there's extensive data we have gathered over the last two to three months to confirm that K through 12 schools can operate with face-to-face learning and they can do it safely," Redfield said in a Coronavirus Task Force briefing on Thursday, without citing the research. Several CDC spokespeople said they could not immediately identify what data Redfield was talking about.
"For kids, one of the safest places they can be is to remain in school," he said. Redfield stressed the importance of "following the data" to make decisions on closures, "and I'm here to say clearly the data strongly supports that K through 12 schools and institutes of higher learning really are not where we are having our challenges."
In his own statement, Byron said, "The court should reject Governor Beshear's order and follow the CDC and the law."
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