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Lawsuit filed could force all Kentucky schools to offer in-person learning for students

Posted at 4:20 PM, Feb 03, 2021
and last updated 2021-02-03 22:09:03-05

(LEX 18) — The debate over a return to in-person learning continues in dozens of Kentucky school districts mounting to a lawsuit claiming dozens of districts are violating the Kentucky Constitution.

On Wednesday morning, a lawsuit filed in Boone County challenges districts across the state for barring all students from returning to the classroom.

But the story really started in March 2020 when Kentucky Governor Andy Beshear suspended the requirement for Kentucky schools to be in-person for a number of days using an executive order citing the pandemic.

Fast forward to Tuesday night when the Kentucky legislature struck down the Governor's veto of SB1 saying the Governor can no longer suspend statutes unless it is in an executive order and he must have permission from the Attorney General to suspend a statute. That veto override made the Governor's March executive order invalid.

The Governor filed a lawsuit in protest to the overrides.

The override Tuesday night paved the way for a case to be filed against the Boone County Board of Education and school district.

But, it was filed as a "class action suit," meaning it will apply to all school districts in Kentucky if it succeeds.

The lawsuit boils down to one thing: giving Kentucky kids the choice to return to in-person learning.

One of the plaintiffs in the suit is a Boone County father of two, "one of whom is on a 504 plan, basically, you know, because additional services and special needs, to some degree." Attorney Chris Wiest explained, "These kids aren't getting what they need in the classroom, that's a problem...Our lawsuits are pretty, you know, nuanced in the sense that like if it's an option, that's good enough. I mean, the parents have the option. We're not trying to override parents' parental choice, but we are trying to require the schools to comply with the statutes offer in-person instruction."

Wiest explained as it stands, school districts across the state are violating those statutes.

"There's a section of the Kentucky constitution that requires the general assembly to have efficient schools, efficient public schools, and you know that led to school litigation," said Wiest. "In the early 1990s in the rose case, for instance, and what the Supreme Court said, in that case, is there needs to be a statewide standard you can't discriminate from here to there in everywhere you can't discriminate based on you know where somebody lives. there needs to be, you know, efficient schools throughout the state, and rose was primarily about school funding, but it was also about school standards."

In Fayette County, this week's news of the district anticipating returning to the classroom starting with grades K-2 on February 16 has given those wanting to return to school hope.

But Wiest explained he is prepared to file suit against FCPS (Fayette County Public Schools) and the school board because they still wouldn't be allowing all students to attend school in-person.

"For K through two, well, what about three through 12?" said Wiest. "And the short answer to your question is if there's not in-person instruction offered for every single kid, we're going to probably be filing this lawsuit down there if we can't get. If the Boone case gets us where we need to be to get the kids back in Fayette and elsewhere, great. We're not going to file a lawsuit, but if not, yeah, we will file the Fayette case to get the kids back."

He explained one of the FCPS plaintiff's stories if the FCPS case is filed goes beyond education.

"I've got a parent who discovered their child having communications about suicide," said Wiest, "And she intervened and she's getting him mental counseling...You know, COVID is serious, but there are serious secondary effects of these kids not being in school. That in my estimation, you know are equal, if not worse than, than COVID."

This is not Wiest's first attempt to roll back changes caused by the Governor's executive orders.

"I did the church case in April against the Governor in federal court that we won. I did a protest case against the Governor that we won. I've done the travel ban case against the Governor that we won in Federal Court," he continued, "I mean, all of these issues are important but I am, you know, from a public perspective, I've never seen anyone get as engaged as parents do about their kids."

As far as teachers, Wiest said he has heard from teachers in several counties pleading for help going back in-person. He also said he expects to see push back on the Boone County lawsuit from Kentucky teacher unions on the other side saying they will not go back without "a fight."