Federal appeals panel says Beshear's ban on in-person schooling can apply to religious schools; positive-test rate jumps to 9.24%

Part of a slide published by Gov. Andy Beshear in response to federal appeals court's ruling

By Al Cross

Kentucky Health News

Gov. Andy Beshear's ban on in-person schooling will remain in effect at all Kentucky schools while federal judges consider whether it can apply to religious schools that follow social-distancing and hygiene rules.

Meanwhile, Beshear announced 2,803 new cases of the novel coronavirus, the most ever on a Sunday, and a record-high share of Kentuckians testing positive for the virus, 9.24 percent.

A three-judge panel of the U.S. Sixth Circuit Court of Appeals in Cincinnati stayed an injunction issued Wednesday by District Judge Greg Van Tatenhove, saying the religious schools were unlikely to win their case.

"As the governor explains, elementary and secondary schools pose unique problems for public health officials responding to the covic-19 pandemic," the court said in a seven-page opinion. "Compliance with masking and social distancing requirements is difficult to maintain, and students receiving in-person instruction must, in any event, remove their facial coverings to eat. … We are not in a position to second-guess the governor’s determination regarding the health and safety of the commonwealth at this point in time."

On Nov. 18, Beshear banned in-person schooling effective Monday, Nov. 23, and said middle and high schools mist remain in remote or virtual instruction until at least Jan. 4. He allowed elementary schools to resume in-person instruction Dec. 7 if they follow state guidance and are not in the state's red zone, for the highest rates of infection. The order was part of several new restrictions to thwart the pandemic.

Two days later, Danville Christian Academy filed suit against the Democratic governor and his order, and Republican Attorney General Daniel Cameron joined as a plaintiff. Several other schools joined in. Van Tatenhove ruled that the state hadn't used the least restrictive means, a requirement when the free exercise of religion is at issue. 

Cameron said on Twitter, "We’re disappointed with the Sixth Circuit’s ruling allowing the Governor to close religious schools, but we’re already hard at work to take this matter to the United States Supreme Court."

The three judges on the appeals-court panel were John M. Rogers and Helene M. White of Michigan, who were appointed by George W. Bush, and Karen Nelson Moore of Ohio, who was appointed by Bill Clinton.

They wrote, "Primarily because plaintiffs are unlikely to succeed on the merits of their free-exercise claim, the preliminary injunction should not have been entered. This is because of the likelihood that our court will rule that the order in question is neutral and of general applicability," a standard applied to cases involving religion, along with a standard of "strict scrutiny." The panel wrote, citing a key word from Chief Justice John Roberts, "Any burden on plaintiffs’ religious practices is 'incidental' and therefore not subject to strict scrutiny."

The judges also noted Beshear's arguments that Kentucky is "particularly vulnerable" to the pandemic because “leads the nation in children living with relatives other than their parents – including grandparents and great-grandparents, who are especially vulnerable to the disease,” and “Kentuckians also have high rates of comorbidities that can lead to severe cases of covid-19, including heart and lung conditions.”

Beshear said on Facebook, "Today, the Sixth Circuit recognized that we must all do our part over the next several weeks to slow this virus. Don’t try to find an exception; do your part to save lives."

In his daily press release on the pandemic, Beshear announced the positive-test rate and the new-case total without noting that the latter was the largest reported on a Sunday. The seven-day rolling average of new cases rose to 2,727 after declining for the two days after Thanksgiving, the day that the state reported the largest number of new cases in a day, 3,870.

The positive-test rate was .05 percentage points above the previous high of 9.19%, recorded one week earlier. It had declined in the days between, averaging 8.92%.

Kentucky hospitalizations for covid-19 declined slightly, to 1,709, with 407 of them in intensive care and 218 of those on ventilators, both near records.

Beshear announced 11 more covid-19 deaths, raising the state's toll to 1,896. They were two Caldwell County men, ages 70 and 80; a Fulton County woman, 87; a Hopkins County woman, 60; a 61-year-old woman and a 90-year-old man from McCracken County; a McLean County man, 88; and four Warren County women, 61, 83, 93 and 93.

Beshear's press release said he thanked Kentuckians "who sacrificed for each other and rose to the challenge of battling covic-19 together during the Thanksgiving holiday" and quoted him as saying:

“The thing about this crisis is, all of us might step up in a different way, but each of our contributions matter. To every family who changed their traditions this year to keep others safe – thank you. To our only line health care workers and first responders who have put your own safety at risk during this pandemic – thank you. To our tireless neighbors battling food insecurity and making sure Kentuckians can put dinner on the table, on Thanksgiving and every day – thank you. And to the retail, grocery, logistics and food and beverage professionals who did the right thing to keep yourselves and customers safe this week – thank you. . . . You are all the best of Team Kentucky.”

Health Commissioner Steven Stack said in the release, “The massive increase of covid-19 in the commonwealth during November has shattered prior records. As we finish the Thanksgiving weekend, we need to show our kindness and caring for each other now more than ever. The spread of the virus is at an all-time high, but science and experience have shown that we are not powerless to shape our future. If we all wear masks, stay six feet away from those outside our home, limit travel and stay home if we are sick, we can put ourselves on a better path, stay safe and suppress covid-19.”

In other coronavirus news Sunday:

• Counties with more than 10 new cases were: Jefferson, 471; Fayette, 314; Daviess, 132; Hardin, 103; Boone, 93; McCracken, 74; Kenton, 70; Campbell, 62; Henderson, 60; Elliott, 47; Bullitt, 42; Perry, 39; Boyd, 38; Jessamine, 37; Warren, 37; Christian, 36; Simpson, 36; Greenup, 34; Graves, 33; Rowan, 32; Whitley, 31; Boyle, 29; Floyd, 29; Madison, 28; Pike, 28; Nelson, 25; Marshall, 24; Lincoln, 23; Scott, 22; Woodford, 22; Calloway, Laurel and Oldham, 21; Ohio, 20; Leslie, 19; Breathitt, Caldwell and Grant, 18; Harlan, Harrison and Johnson, 17; Muhlenberg, 16; Marion and Washington, 15; Bath, Clay, Franklin and Mercer, 14; Knox, Meade and Taylor, 13; Garrard, Magoffin, Martin and McLean, 12; and Hopkins, Knott, Montgomery, Morgan and Pulaski, 11.
• Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said on NBC's "Meet the Press" that when he warns about "a surge superimposed on that surge that we're already in . . . I don't want to frighten people, except to say it is not too late at all for us to do something about this." But he acknowledged, "I'd have to say honestly unless something changes dramatically, which I don't see that happening, because the curves, when you look at the dynamics of an outbreak, that you see usually a three, four, five-week period of time before curves start really coming down. So, I think we're going to be faced with another situation. We're going to have to make decisions as a nation, state, city, and family, that we're in a very difficult time and we're going to have to do the kinds of restrictions of things we would like to have done, particularly in this holiday season, because we're entering into what's really a precarious situation because we're in the middle of a steep slope."
• Asked what he would say to President-elect Joe Biden if he asked on Inauguration Day, "What's the first thing you want me to do, Dr. Fauci?" the doctor replied "make sure that the vaccines get distributed in an efficient and equitable way" and "the broader testing, namely one that's less sensitive but that's testing people who are not symptomatic, namely a much broader blanket over the country in a way that's easy, that's cheap, that is even a home test. I'm going to be pushing for that because I think when you really allow us to know in a very quick way what the penetrance of infection is in any given way, I think that's going to be very important because the virus is being spread throughout the country by people without symptoms. So, we've got to go beyond the symptomatic people and get a better understanding of the asymptomatic transmission."