78 F.4th 286
6th Cir.2023Background
- In response to a COVID-19 surge, Kentucky Governor Andy Beshear issued EO 2020-969 (Nov. 18, 2020), temporarily requiring K–12 public and private schools to shift to remote learning from Nov. 23, 2020 until Jan. 4, 2021 (with limited exceptions and phased return dates).
- Plaintiffs (religious schools, affiliated pastors, and parents) sued the Governor in his individual capacity alleging violations of the Free Exercise Clause, a Fourteenth Amendment right to private education, and rights of assembly/association; they sought declaratory relief and damages.
- A different district court preliminarily enjoined enforcement of EO 2020-969 against religious private schools, but this court stayed that injunction in Danville, holding the order likely neutral and generally applicable.
- After EO 2020-969 expired, the district court treated the amended complaint as operative but dismissed the damages claims against Governor Beshear on qualified-immunity grounds; Plaintiffs appealed.
- The Sixth Circuit affirmed, holding Plaintiffs failed to show that the asserted constitutional rights were clearly established on Nov. 18, 2020; the panel therefore resolved the case on the clearly-established prong of qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EO 2020-969 violated the Free Exercise Clause by closing in-person instruction at religious schools while exempting or lessening restrictions on other secular activities | EO 2020-969 singled out and burdened religious education; comparable secular activities were treated more favorably, so strict scrutiny applies | EO 2020-969 applied neutrally to all elementary and secondary schools (religious and secular alike); existing precedent left comparator selection unsettled | Court affirmed qualified immunity because, given pre-existing and conflicting authority, the unlawfulness was not "clearly established" on Nov. 18, 2020 |
| Whether parents’ Fourteenth Amendment right to private education was violated | Parents were denied their right to send children to in-person private religious schools | EO 2020-969 did not deny the choice to enroll or interfere with curriculum—only temporarily required remote instruction | Dismissed: no cognizable deprivation alleged; alternatively, right was not clearly established; qualified immunity applies |
| Whether EO 2020-969 violated rights of peaceful assembly and expressive/intimate association | The ban on in-person schooling prevented associational and assembly rights | Plaintiffs offered only perfunctory argument and failed to identify protected forms of association or substantial interference | Forfeited on appeal; on the merits, no direct and substantial interference shown; qualified immunity applies |
| Whether Governor Beshear is entitled to monetary-liability defense of qualified immunity | Plaintiffs argue the Governor acted unconstitutionally and thus may be liable | Governor argues that controlling law was unsettled; reasonable officials could differ given prior COVID-era rulings | Held: Governor entitled to qualified immunity because controlling law was contested (Maryville/Roberts and other decisions) and no clearly established precedent put the constitutional question beyond debate |
Key Cases Cited
- Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (addressing March 2020 Kentucky orders; suggested religious-targeting and enjoined certain worship restrictions)
- Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (similar relief for in-person worship; emphasized comparable secular exceptions)
- Kentucky ex rel. Danville Christian Acad., Inc. v. Beshear, 981 F.3d 505 (6th Cir. 2020) (stayed district-court injunction and held EO 2020-969 likely neutral and generally applicable)
- Employment Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990) (neutral, generally applicable laws do not violate Free Exercise absent strict scrutiny)
- Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (laws targeting religious conduct are subject to strict scrutiny)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified-immunity two-prong framework; courts may address prongs in either order)
- Anderson v. Creighton, 483 U.S. 635 (1987) (clarifies "clearly established" standard)
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ("pre-existing law" must place constitutional question beyond debate for liability)
- Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam) (COVID-era per-curiam emphasizing comparators and strict scrutiny where religious activities were treated worse than similar secular ones)
- Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam) (clarified comparator test under Free Exercise; noted by concurrence but issued after the challenged order)