Attorney General Andy Beshear talks to reporters after arguing against executive orders reorganizing education boards. | Photo by Olivia Krauth

A state investigation into teachers who sparked a wave of district closures can move forward, a federal judge ruled.

US District Court Judge Danny Reeves denied Attorney General Andy Beshear’s request for a temporary restraining order to halt the Labor Cabinet’s subpoenas, investigation and potential fines stemming from the spring’s sickouts Thursday.

The cabinet is free to continue to investigate whether teachers performed an illegal work stoppage. Since the ruling came before the subpoena deadline, 10 districts are expected to provide teacher names and other sickout-related documents by Friday.

Reeves said the subpoenas are likely to cause minimal injury to teachers because the state education department provided most of the information already. Denying the motion “protects third parties from harm and promotes the public interest,” Reeves wrote, backing key points from the Cabinet’s argument.

“Today’s ruling is disappointing, but the case is far from over,” Beshear said in a statement. “Our teachers should be respected, not attacked.”

A Labor Cabinet spokeswoman, Haley Bradburn, said Reeves “correctly recognized the harmful impact of the ‘sick outs’ on Kentucky students, parents, employers, and taxpayers, noting that they were ‘neither insignificant nor trivial.'”

Public employees are not allowed to strike in Kentucky. Teachers found to have violated the law can be fined $100 to $1,000 per violation. For example, a Jefferson County teacher called in sick before each of the district’s six closures could face a maximum fine of $6,000.

Roughly 2,000 teachers across the state took advantage of a loophole in sick leave policy to shutter schools to protest education bills, the state education department found. Since schools closed, the district didn’t collect doctors notes or affidavits to prove illness. Teachers didn’t use a sick day, either.

A lack of documentation may make it difficult to determine which teachers were sick and which were not. Steve Pitt, the governor’s lawyer who is aiding the cabinet’s legal team on the case, suggested investigators may match names provided by districts to those who signed into the Capitol on the days of protests.

Meanwhile, a legal battle to stop the investigation will continue in federal court. Reeves did not issue a response to Beshear’s request to move the case back to state court.

In oral arguments May 7, lawyers pitted against each other two central arguments of the sickouts: The teachers’ free speech rights versus the potential harm to parents and students from sudden school closures.

The AG’s office maintains a sickout is not a strike, and therefore out of the cabinet’s purview. Teachers exercised their First Amendment rights to protest education bills — not their working conditions, the AG said. Those rights don’t end when someone becomes a teacher, Beshear and his team have said.

The rights could end, however, when they begin to impede on the public good, Pitt said in defense of the cabinet. Sudden closures left parents scrambling for childcare, potentially missing work to stay home, he said. Students missed class, and some classified employees may have missed a day of pay.

Deputy AG J. Michael Brown said such issues would happen for any closure, including snow days. Beshear, who is vying to be the Democratic candidate for governor, was not at the hearing.

Education Commissioner Wayne Lewis first asked districts for the names of teachers who called in sick after the fifth JCPS sickout in March. He asked districts to change local policies, promising to not punish teachers if the closures ended.

The cabinet subpoenaed districts in April, asking for much of the same information as Lewis. Soon after, Beshear asked them to rescind the orders. Labor Secretary David Dickerson refused.

Beshear and the Jefferson County teachers union sued the cabinet April 29 after the subpoenas weren’t withdrawn. Dickerson asked to move the case from Franklin County to federal court later in the week due to its focus on constitutional rights.

This post has been updated with comment from the Labor Cabinet. 

Olivia Krauth
Krauth reports on education in Louisville, including JCPS, the University of Louisville and state policy.Before joining Insider Louisville, she covered technology and business as a reporter at TechRepublic. She also spent time on the data team at the Austin American-Statesman in Texas as a Dow Jones intern.Krauth graduated from UofL, where she was an award-winning editor of The Louisville Cardinal and obtained a degree in investigative journalism with a minor in Russian studies.Email Olivia at [email protected]