COMMONWEALTH OF KENTUCKY

BOONE CIRCUIT COURT

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DIVISION I
CASE NO. 21-CI-00161

AARON GILLUM, on behalf of himself and

as next friend and guardian of LG and NG,
minor children PLAINTIFFS

VS.

BOONE COUNTY BOARD OF EDUCATION, et al. DEFENDANTS

ORDER

This matter was before the Court February 25, 2021, for a hearing on the Motions of Plaintiffs

for Temporary Injunction, and for Class Certification. Hon. Christopher D. Wiest and Hon. Thomas

Bruns appeared for Plaintiffs. Hon. Claire Parsons and Hon. Olivia Amlung appeared for Defendants

Boone County Board of Education (“BCBE”), Boone County Public School District, Dr. Tiffany

Schussler, Dr. Maria Brown, Jesse Parks, Julia Pile, Karen Byrd and Matthew Turner, in their official

capacities. By agreement of counsel, and in conformance with the orders of the Kentucky Supreme

Court, the hearing was conducted remotely. Having considered the memoranda, arguments of counsel

and, being in all ways sufficiently advised, the Court enters this Order.

Plaintiffs seek injunctive relief to require BCBE to provide in-person classroom instruction as

mandated by K.R.S. Chapter 158, et seq. These statutes require schools to provide in-person

instruction and allow for no more than ten days of non-traditional instruction during any school year.1

In March 2020, Governor Beshear suspended Chapter 158 by executive order issued under K.R.S.

Chapter 39A, et seq. In conformance with that executive action, schools across Kentucky were closed
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to in-person instruction. BCBE resumed partial in-person instruction for a brief period earlier in the

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Statutory exceptions allow students to study outside the classroom where necessary for home hospital instruction, but these
exceptions are not generally available and require a showing of need.
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2020-21 school year but in-person classes were again suspended. Currently, BCBE is providing in-

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person instruction for students only two days per week, with plans to expand that to four.

On February 2, 2021, the General Assembly overrode a gubernatorial veto and passed Senate

Bill 1 into law. Among its provisions, Senate Bill 1 removed from Chapter 39A any authority of the

executive to suspend any statute unless the Kentucky Attorney General agrees to the suspension in

writing. The General Assembly included within Senate Bill 1 their determination of an emergency,

thus making this provision effective immediately. The Kentucky Attorney General has expressly

declined to authorize any further suspension of K.R.S. Chapter 158.

Pursuant to CR 65.04(1):

A temporary injunction may be granted during the pendency of an action on motion

if it is clearly shown by verified complaint, affidavit, or other evidence that the
movant’s rights are being or will be violated by an adverse party and the movant
will suffer immediate and irreparable injury, loss, or damage pending a final
judgment in the action, or the acts of the adverse party will tend to render such final
judgment ineffectual.

The purpose of this rule “is to insure that the injunction issues only where absolutely necessary

to preserve a party’s rights pending the trial of the merits.” Maupin v. Stansbury, 575 S.W.2d 695, 698

(Ky. App. 1978). In Maupin, the Kentucky Court of Appeals established a three-part test for issuance

of a temporary injunction. First, Plaintiff must show that, without the temporary injunction, he will

suffer immediate and irreparable injury to his rights pending trial. Id. at 699. Second, the Court must

weigh any equities that may be involved. Id. Third, the Court should determine whether a substantial

question on the merits has been shown. Id. “If the party requesting relief has shown a probability of

irreparable injury, presented a substantial question as to the merits, and the equities are in favor of

issuance, the temporary injunction should be awarded.” Id. If one or more of these criteria are not
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satisfied, the temporary injunction should be denied. Sturgeon Min. Co., Inc. v. Whymore Coal Co.,

Inc., 892 S.W.2d 591 (Ky. 1995).

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 Irreparable harm is sufficiently demonstrated where it is shown there is potential for the

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“abrogation of a concrete personal right,” and where such rights are threatened with immediate

impairment. Maupin v. Stansbury, 75 S.W.2d 695, 698 (Ky. 1978). Section 183 of Kentucky’s

Constitution provides a right to public education. “[E]ducation is a fundamental right in Kentucky.”

Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 206 (Ky. 1989). There is no dispute that

Plaintiffs are being denied access to in-person instruction mandated by K.R.S. Chapter 158. Moreover,

Plaintiffs also demonstrated, through testimony, that they are suffering a substantial impairment due to

the lack of that instruction. The Court finds the Plaintiffs have demonstrated irreparable harm.

Plaintiffs have further demonstrated that a substantial question exists on the merits of their

claims. Section 183 of Kentucky’s Constitution requires the General Assembly to provide Kentuckians

access to “an efficient system of common schools throughout the state.” In doing so, K.R.S. Chapter

158 establishes that Kentucky’s public schools must offer in-class, in-person instruction to students

within their respective districts, with no more than ten days of non-traditional instruction during any

school year, to which Defendants concede. Via Senate Bill 1, the General Assembly removed their

previous delegation under K.R.S. Chapter 39A that, heretofore, allowed the executive to suspend any

statute. Defendants argue that the General Assembly’s action should be deemed constitutionally

suspect. But that is not the law. On the contrary, Section 15 of Kentucky’s Constitution addresses the

specific bedrock principle at issue and emphatically declares: “No power to suspend laws shall be

exercised unless by the General Assembly or its authority.” Because K.R.S. Chapter 158 is in force,

Plaintiffs are likely to succeed on the merits.

The balance of equities also favors the issuance of an injunction. As was presented at the
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hearing, and in the memoranda, other school districts in Kentucky have been providing in-person

services. Just south of Boone, for example, and in this very circuit, Gallatin County has had students

attending in-person four days per week. The same is said of Franklin County. Another example is near
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Paducah, where full in-person instruction has been routinely provided all five days of each school

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week. It is true, as Defendants point out, that these districts have significantly fewer students. But it is

also true that they have far less facility space than does Boone which, according to the testimony, has

twenty-six different schools. There is no indication that these districts have suffered any adverse

consequences for having done so. Additionally, testimony indicated that, whereas Kentucky imposes a

human distancing requirement of six feet, Indiana recommends only three in its schools, and Ohio has

no distancing requirement at all. Defendants presented these comparisons to demonstrate why it is

more difficult to resume in-person classes in Kentucky but provided no indication that these adjoining

states have suffered any adverse consequences from reducing—or removing—distancing guidelines.

Moreover, the directive and policy set by the legislature must also be weighed on the balance.

“The establishment of public policy is the prerogative of the General Assembly . . . .” Hoffman v.

Yellow Cab Co. of Louisville, 57 S.W.3d 257, 261 (Ky. 2001). By Senate Bill 1, and Chapter 158, the

General Assembly has spoken.

For all the foregoing reasons, as well as those stated from the bench, Plaintiffs’ Motion for

Temporary Injunction is well taken.

IT IS HEREBY ORDERED AND ADJUDGED that Plaintiffs’ Motion for Temporary

Injunction is GRANTED and Defendants shall, on or before March 22, 2021, comply with K.R.S.

Chapter 158 pertaining to the provision of in-person instruction.

IT IS FURTHER HEREBY ORDERED AND ADJUDGED that the Court shall RESERVE

on Plaintiffs’ Motion for Class Certification pending further proceedings.

IT IS FURTHER HEREBY ORDERED that, although this Order is not a final adjudication of
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all claims of the parties herein, both parties have acknowledged that this Court’s ruling is destined for

the litmus test of appellate review, and the request being made, without objection, that the Court make

this Order final to afford that opportunity at this juncture, and considering the nature of the issues
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presented in this case, together with the backdrop of ancillary rulings relating to subject matters

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pertinent herein over the past year, as well as those pending, the Court will grant the requested

designation. Thus, pursuant to CR 54.02, this Court determines that there is no just reason for delay

and hereby designates this Order as final and appealable.

IT IS SO ORDERED.

JUDGE RICHARD A. BRUEGGEMANN

BOONE CIRCUIT COURT

COPIES TO: ALL PARTIES AND ATTORNEYS OF RECORD

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