Beshear appeals ruling that blocks his mask mandate in at least one Kentucky school

A federal judge issued a temporary restraining order Thursday against Kentucky Gov. Andy Beshear’s mask mandate for students in a legal case involving about 20 families in a Campbell County Catholic school.

The ruling does not affect separate emergency regulations approved by the Kentucky Department of Education and the Kentucky Department for Public Health, so mask mandates remain in effect at all public schools in the state and at daycares and preschools.

Beshear spokeswoman Crystal Staley said the ruling by U.S. District Judge William O. Bertelsman of Covington “could place thousands of Kentucky children at risk and undoubtedly expose them to the most dangerous version of COVID-19 we have ever seen.”

She said Friday afternoon that Beshear had filed an emergency motion earlier in the day to dissolve the restraining order in the district court.

“The judge was never advised of the Franklin Circuit Court injunction,” she said. “The governor will appeal any adverse decision at the appropriate time to protect the public health and safety of Kentuckians from this deadly disease.”

Staley was referring to a Franklin Circuit Court judge’s order in March to block the implementation of new state laws approved by this year’s General Assembly to limit Beshear’s emergency powers.

Shortly before the Kentucky Supreme Court heard arguments in that case, a Boone circuit judge ruled that the new legislation was in effect and stopped the governor from issuing new emergency orders.

A U.S. District Court clerk in Covington said late Friday that Bertelsman will take up all motions at a 1 p.m. hearing Aug. 24.

Covington attorney Brandon Voelker, who represents the families, said the judge’s decision to temporarily block the governor’s mandate would impact students at St. Joseph Elementary School in Cold Spring. It has about 450 students in kindergarten through the eighth grade.

Voelker said it is uncertain if the ruling affects private school students across the state.

Tom Brown, superintendent of schools for Lexington’s Catholic Diocese, said officials were studying the situation and had no immediate comments.

At Sayre School, all individuals age two and older must wear a mask while inside school buildings and vehicles used for transportation, said the school’s spokeswoman Barb Milosch.

“We continue to monitor the COVID situation and engage in an ongoing review of our Safe at Sayre protocols,” Milosch said. “We remain committed to our campus being safe and open. We will provide our community with scheduled updates while factoring in various sources at the national, state, and local level.”

Staley said the plaintiffs in the case “have agreed that the order should be narrowed to only apply to their diocese and no other schools.”

Toni Konz Tatman, chief communications officer for the state Department of Education, said the federal judge’s order does not impact the state Board of Education’s emergency regulation that requires masks in public schools.

On Aug. 10, Beshear issued an executive order mandating masks inside Kentucky schools and daycare centers, which Attorney General Daniel Cameron has asked the Kentucky Supreme Court to reject.

Later, the Kentucky Board of Education and the Department for Public Health issued their own emergency regulations that would require children over the age of two to wear a mask or other face-covering in K-12 public schools and regulated child care facilities.

Voelker said several parents at St. Joseph asked the court about Beshear’s mandate, noting that the Diocese of Covington already had put in place protocol to curb COVID-19, including social distancing and temperature screening.

The parents originally had filed a lawsuit in Campbell Circuit Court but decided to seek relief in federal court.

Bertelsman said in his five-page order that the plaintiffs are likely to succeed on the merits of their claims that Beshear’s mask executive order violates state law dealing with emergencies.

He said Beshear’s order would cause harm to children’s emotional well-being and academic growth.

“Such intangible and unquantifiable harm is irreparable because it cannot be measured or undone,” said Bertelsman. “A temporary restraining order is required to enjoin defendant’s actions and preserve the status quo until the court holds a hearing on the merits.”

Bertelsman chided Beshear for not following laws passed by the Kentucky General Assembly this year that outlined procedures for the governor to follow in making emergency orders.

“The executive branch cannot simply ignore laws passed by the duly-elected representatives of the citizens of the Commonwealth of Kentucky,” said the judge. “Therein lies tyranny. If the citizens dislike the laws passed, the remedy lies with them, at the polls.”

The laws referenced by Beshear have been the subject of several lawsuits that are now before the Kentucky Supreme Court. One lower-court judge issued a temporary injunction against enforcing the new laws, while another lower-court judge issued an injunction against Beshear for not following the new laws.

Staley said the court ruled without hearing from the governor and with “absolutely no consideration of the consequences of exposure and quarantine that we will see — especially at a time when we are nearly out of staffed hospital beds statewide.”

She added, “We will pursue every avenue and option to ensure that we can protect Kentucky’s children.”

COVID-19 cases in Kentucky children have increased more than 400 percent in the last month, from 133 on July 16 to 548 on August. 16. on Wednesday, there were 1,275 new cases in Kentucky among people 18 and younger.