Professional Documents
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Gillum Complaint Filing
Gillum Complaint Filing
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The parties
1. The parent Plaintiff in this case is a property owner of property located in Boone County
Public Schools, a resident within the district, a taxpayers, and a parent, of school children
enrolled in the Boone County Public Schools. Mr. Gillum also bring suit as next friends
2. The Defendants include the Boone County Board of Education (“Board”) as a body
politic, which, under KRS Chapter 160, provides oversight and authority for the Boone
County Public School District, and, among other things, is responsible for the provision
of public education to children within Boone County, Kentucky. Defendants also include
the individual board members (in their official capacities only), and the Superintendent.
Under KRS 160.370, it is the duty of the Superintendent to “see that the laws relating to
the schools, the bylaws, rules, and regulations of the Kentucky Board of Education, and
the regulations and policies of the district board of education are carried into effect.”
The facts
Kentucky officials, including its Governor, took immediate action, including, without
limitation, moving education to a virtual or remote option. The Governor did this
through the issuance of an executive order, which suspended of existing statutes (set forth
4. From the time the Governor’s executive order was put into place, until February 2, 2021,
the in-person educational requirements of the Kentucky Revised Statutes (set forth
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5. The Board, for its part, established virtual or remote instruction since the time of the
6. The Board established a calendar for instruction in the 2020-2021 school year.1
Board and the District has, for the entire instructional year commencing on August 18,
2020, and continuing to the present, conducting its instruction in a hybrid, part time
setting.
7. All indications are that the Board and District will continue instruction in a part time in-
person from now until at least the beginning of March, 2021, and possibly to the end of
the 2021 spring school year, currently set to occur on May 19, 2021.
8. Starting late 2020 and continuing through the present and beyond, the Commonwealth of
Kentucky, and its Department of Public Health, has begun coordinating vaccination
9. In particular, both the Moderna and Pfizer vaccines have been demonstrated to have high
10. As a priority to re-open schools, K-12 school personnel, including both certified and non-
certified personnel, were placed in Priority Code 1-B – one of the highest priority codes -
11. School staff are eligible to receive the vaccines now, and have been eligible for weeks to
1
https://www.boone.k12.ky.us/userfiles/3087/my%20files/standard%20calendar%20-
%20student%20-%202021-2022.pdf?id=593109 (last visited 2/1/2021).
2
https://govstatus.egov.com/ky-covid-vaccine (last visited 2/1/2021).
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12. As opposed to community spread in Boone County, the number of cases for children
13. The World Health Organization,4 and other studies,5 have demonstrated that, as opposed
to other interactions, infections of COVID-19 within schools has not been a substantial
measures are taken; what is more, there are serious societal and other consequences to
suicides,7 and other troubling events. This is particularly concerning where suicide is the
second leading cause of death in middle and high school age children in Kentucky.8
14. All evidence, both before and currently, is that the remote instruction of students is
In a range of environments, the gaps in student success across socioeconomic groups are
larger in online than in classroom courses. Students without strong academic
backgrounds are less likely to persist in fully online courses than in courses that involve
personal contact with faculty and other students and when they do persist, they have
weaker outcomes. Not surprisingly, students with more extensive exposure to technology
https://public.tableau.com/profile/chfs.dph#!/vizhome/COVID19SchoolSelfReportngData/Schoo
lSelfReportCovid19DB (last visited 2/1/2021).
4
https://www.who.int/docs/default-source/coronaviruse/risk-comms-updates/update39-covid-
and-schools.pdf?sfvrsn=320db233_2 (last visited 2/1/2021).
5
https://www.usnews.com/news/education-news/articles/2020-12-23/new-study-cautiously-
suggests-schools-dont-increase-spread-of-coronavirus (last visited 2/1/2021);
https://jamanetwork.com/journals/jama/fullarticle/2775875 (last visited 2/1/2021);
https://www.cidrap.umn.edu/news-perspective/2021/01/scientists-highlight-low-risk-covid-19-
spread-schools (last visited 2/1/2021); https://www.cnn.com/2021/01/29/health/schools-covid-
spread-study-preprint/index.html (last visited 2/1/2021).
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https://www.sentinelnews.com/content/mental-health-growing-pandemic-concern-schools (last
visited 2/1/2021)
7
https://www.wave3.com/2020/09/11/suicide-prevention-guide-parents-with-middle-schoolers/
(last visited 2/1/2021);
8
https://education.ky.gov/school/sdfs/Pages/Suicide-Prevention-and-Awareness.aspx (last visited
2/1/2021).
9
http://mason.gmu.edu/~sprotops/OnlineEd.pdf (last visited 2/1/2021).
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and with strong time management and self-directed learning skills are more likely than
others to adapt to online learning where students can do the work on their own schedules.
There is considerable danger that moving vulnerable students online will widen
attainment gaps rather than solving the seemingly intractable problem of unequal
educational opportunity.
15. A 2017 study demonstrates not only lower student performance in the course in which a
student is enrolled virtually, but long-term educational impacts and damage from virtual,
17. Equally problematically, there has been no assessment testing due to waivers for COVID-
19, to objectively measure the impact that remote learning has had on student
student.12
18. These children of the Plaintiff have had serious negative impacts due to total or part time
virtual learning since the outset of the pandemic. NG has diagnosed speech issues, for
which he is receiving services (currently remotely), and neither child is achieving the
including in medium sized cities, are providing quality in-person instruction.13 Next
10
https://pubs.aeaweb.org/doi/pdf/10.1257/aer.20151193 (last visited 2/1/2021).
11
https://journalistsresource.org/studies/society/education/virtual-schools-parents-choice-
performance-research/ (last visited 2/1/2021);
https://pubs.acs.org/doi/pdf/10.1021/acs.jchemed.0c00788 (last visited 2/1/2021);
12
https://education.ky.gov/districts/tech/sis/Documents/2020SRCReportingImpactChanges.pdf
(last visited 2/1/2021).
13
https://www.paducah.kyschools.us/COVID-19Coronavirus.aspx (last visited 2/1/2021);
14
https://www.gallatin.k12.ky.us/featured/1 (last visited 2/1/2021);
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The law
20. Section 183 of the Kentucky Constitution provide that “The General Assembly shall, by
appropriate legislation, provide for an efficient system of common schools throughout the
State.”
21. In Rose v. Council for Better Educ., 790 S.W.2d 186 (1989) the Kentucky Supreme Court
identified that Courts should be “ever mindful of the immeasurable worth of education to
our state and its citizens, especially to its young people,” and that “framers of our
constitution intended that each and every child in this state should receive a proper and an
22. Indeed, “education is perhaps the most important function of state and local
cultural values, in preparing him for later professional training, and in helping him to
adjust normally to his environment.” Id. “In these days, it is doubtful that any child may
Id.
23. One of the holdings of Rose was that “all common schools must be free, open to all
students, and provide equal opportunities for all students to acquire the same education.
In other words, although by accident of birth and residence, a student lives in a poor,
financially deprived area, he or she is still entitled to the same educational opportunities
24. The Court observed that the following are requirements for the provision of educational
services: “1) The General Assembly is mandated, is duty bound, to create and maintain a
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system of common schools -- throughout the state. 2) The expressed purpose of providing
such service is vital and critical to the well being of the state. 3) The system of common
schools must be efficient. 4) The system of common schools must be free. 5) The
system of common schools must provide equal educational opportunities for all students
in the Commonwealth. 6) The state must control and administer the system. 7) The
system must be, if not uniform, "substantially uniform," with respect to the state as a
whole. 8) The system must be equal to and for all students.” Id. at 208.
25. Importantly, “[e]ach child, every child, in this Commonwealth must be provided with an
equal opportunity to have an adequate education. Equality is the key word here.” Id. at
211. “The children of the poor and the children of the rich, the children who live in the
poor districts and the children who live in the rich districts must be given the same
26. In an effort to provide the requisite efficient system of education that the Kentucky
Supreme Court has found is required under Section 183 of the Kentucky Constitution, the
27. KRS 158.033 provides that students shall be instructed in their homes, but only if they
are “not able even with the help of transportation to be assembled in a school.”
28. Moreover, KRS 158.033 provides, “(2) For a student to be eligible for home or hospital
29. KRS 158.060 provides the definition of a “school month”: 20 days of instruction “in the
schoolroom.”
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30. KRS 158.070(1)(e) provides this definition of "Student attendance day:" “means any day
that students are scheduled to be at school to receive instruction, and encompasses the
32. KRS 158.070(1)(f) provides this definition of "Student instructional year": “means at
least one thousand sixty-two (1,062) hours of instructional time for students delivered on
not less than one hundred seventy (170) student attendance days.” (emphasis added).
instruction, but limits such instruction to not more than 10 days, and specifically
provides:
(9) Notwithstanding any other statute, each school term shall include no less than the
equivalent of the student instructional year in subsection (1)(f) of this section, or a
variable student instructional year in subsection (1)(h) of this section, except that the
commissioner of education may grant up to the equivalent of ten (10) student attendance
days for school districts that have a nontraditional instruction plan approved by the
commissioner of education on days when the school district is closed for health or safety
reasons. The district's plan shall indicate how the nontraditional instruction process shall
be a continuation of learning that is occurring on regular student attendance days.
Instructional delivery methods, including the use of technology, shall be clearly
delineated in the plan.
34. As further evidence of the statutory scheme for in-person attendance, and recognizing
that schools provide critical services beyond education to at-risk children, the General
(11) Notwithstanding the provisions of KRS 158.060(3) and the provisions of subsection
(2) of this section, a school district shall arrange bus schedules so that all buses arrive in
sufficient time to provide breakfast prior to the beginning of the student attendance day.
In the event of an unforeseen bus delay, the administrator of a school that participates in
the Federal School Breakfast Program may authorize up to fifteen (15) minutes of the
student attendance day if necessary to provide the opportunity for children to eat
breakfast not to exceed eight (8) times during the school year within a school building.
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Additional Facts
35. Notwithstanding the Governor’s suspension of KRS Chapter 158 through emergency
executive orders in March, 2020, the Kentucky General Assembly removed the
Governor’s ability to suspend statutes, absent the consent of the Kentucky Attorney
36. On February 2, 2021, 2021 RS SB1 was passed over the veto of the Governor. Id.
37. The bill specifically amended KRS 39A, and, in Section 4 of the Act, limited the
Governor’s ability to suspend statutes by requiring that “1. The statute is specifically
enumerated by the Governor in the executive order; and 2. The executive order
38. The bill contained an emergency clause so as to take effect immediately at Section 11 of
39. The Attorney General has not approved the suspension of the cited in-person learning
40. At the time of the filing of this Complaint, due to the passage of 2021 RS SB1, and the
fact that the Kentucky Attorney General has not suspended the requirements for in person
learning, the aforementioned requirements for in person instruction are in force and
41. In addition to the provision on non-traditional instruction being generally inadequate, the
Kentucky Constitution regarding the ability to acquire the same education provided by
15
https://apps.legislature.ky.gov/record/21rs/sb1.html (last visited 2/1/2021).
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It is beyond debate under Section 15 of the Kentucky Constitution that the General Assembly
and only the General Assembly has the power to suspend statutes, and to limit their suspension.
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other school districts in the state that are complying with the statutory requirements of
42. The actions and violations herein complained of affect millions of Kentucky parents,
involve more than 80 school boards, involve more than 400 school board members, and
43. Pursuant to C.R. 23.01: (a) the class is so numerous that joinder of all members is
impracticable, (b) there are questions of law or fact common to the class, (c) the claims or
defenses of the representative parties are typical of the claims or defenses of the class,
and (d) the representative parties will fairly and adequately protect the interests of the
class.
44. Pursuant to C.R. 23.02: (a) The prosecution of separate actions by or against individual
members of the class would create a risk of (i) inconsistent or varying adjudications with
respect to individual members of the class which would establish incompatible standards
of conduct for the party opposing the class, or, (ii) adjudications with respect to
individual members of the class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications or substantially impair or
impede their ability to protect their interests; or (b) the party opposing the class has acted
or refused to act on grounds generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with respect to the class as a
whole.
45. Plaintiffs seek a Plaintiff class certification with the class definition defined as follows:
All parents in the Commonwealth of Kentucky, with children enrolled in public schools
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in this Commonwealth, on behalf of themselves and their children, who desire to have
46. Plaintiffs further seek a Defendant class certification with the class definition defined as
follows: All school boards, school districts, and school Superintendents, who are not
48. Plaintiff seeks declaratory relief under KRS Chapter 418 that the actions of these
49. Plaintiff seeks injunctive relief pursuant to K.R.S. 418.055, and C.R. 65, to obtain
compliance with Chapter 158 and Kentucky Constitution 168 by these Defendants, and to
• Declaratory relief, that the Defendants are in violation of KRS Chapter 158 and Kentucky
• Appropriate injunctive relief, including, without limitation, that the Defendants comply
with KRS Chapter 158 and Kentucky Constitution 168, and to direct the resumption of
• Such other relief as this Court may find just and proper.
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Plaintiffs do not, in this action, challenge the ability of the Defendants to: (1) mandate
sanitation, distancing, or other procedures or protocols other than requiring in person instruction;
or (2) seek to inhibit the ability of Defendants to offer full or hybrid virtual instruction at the
request of parents or guardians who wish to have this instruction conducted.
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Respectfully submitted,
/s/Christopher Wiest________
Christopher Wiest (KBA 90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017
513-257-1895 (v)
chris@cwiestlaw.com
/s/Thomas Bruns
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com
/s/Zach Gottesman
Zach Gottesman (86288)
404 East 12 St., First Floor
Cincinnati, OH 45202
zg@zgottesmanlaw.com
Counsel for the Plaintiffs
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