Sixth Circuit Holds Public Health Department School Closure Order Violates Christian Schools’ Free Exercise Rights

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Jan 27, 2021

On November 4, 2020, the Toledo-Lucas County Health Department (Health Department) ordered all public and private schools serving grades 7-12 in the county to close effective December 4, 2020, until January 11, 2021, in order to slow the spread of COVID-19.  The closure order contained an exemption permitting schools to hold religious educational classes or religious ceremonies.  The Health Department noted that “little in-school transmission has been documented,” but closed all schools in the county nevertheless because “[c]ommunity spread conditions continue to worsen in Lucas County[.]”  The Health Department continued to permit gyms, tanning salons, office buildings, and a large casino to remain open.

In response, nine Christian schools brought an action against the Health Department seeking to enjoin the Health Department’s school closure order as applied to them.  The Christian schools argued that the Health Department’s closure of religious schools while permitting secular businesses to remain open, “amount[ed] to a prohibition of religious exercise in violation of the First Amendment.”  After the trial court denied the Christian schools’ request for an injunction, “reasoning that [the school closure order] was a neutral law of general application,” the Christian schools appealed.

On appeal, the Court analyzed whether to grant the Christian schools’ request for an injunction.  In determining whether to grant an applicant’s request for an injunction on appeal, the Court considers four factors: (1) whether the applicant is likely to succeed on the merits of the appeal; (2) whether the applicant will be irreparably harmed absent the injunction; (3) whether the injunction will injure the other parties; and (4) whether the public interest favors an injunction.

To determine whether the Christian schools were likely to succeed on the merits of their case, the Court analyzed whether the closure order violated the Christian schools’ First Amendment right of free exercise of religion.  The Free Exercise Clause protects religious observers from unequal treatment.  Supreme Court precedent requires that any “law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.”

The Court concluded that the closure order burdened the religious practice of the Christian schools because, while the order permitted the schools to continue to provide religious educational classes or religious ceremonies, the Christian schools represented that “their faith pervades each day of in-person schooling,” is an integral part of each class, and is interwoven into secular subjects.  The Court indicated it had “no basis to second-guess these representations.”

The Court further concluded that the school closure order appeared neutral, but was “not of general application.”  In reaching this conclusion, the Court inquired into whether the school closure order “imposed [a] greater burden on religious conduct than on analogous secular conduct.”  The Court noted that because the Health Department closed schools while allowing secular establishments, which were comparable for the purposes of spreading COVID-19 such as gyms, tanning salons, office buildings, and a casino, to remain open, the school closure order imposed greater burdens on religious conduct than on comparable secular conduct.

The Court concluded that the school closure order does not survive the “most rigorous of scrutiny” warranted under the circumstances, and, therefore, the school closure order violates the Christian schools’ rights under the Free Exercise Clause.  Since the Court determined that the Christian schools were likely to succeed on the merits of their appeal, it did not analyze the remaining three factors.  The Court granted the Christian schools’ request for an injunction prohibiting the Health Department from enforcing the school closure order against them.

Monclova Christian Academy v. Toledo-Lucas County Health Department (6th Cir., Dec. 31, 2020, No. 20-4300) 2020 WL 7778170.


Numerous religious schools and other religious organizations across the United States have brought similar cases challenging COVID-19 related closure orders as violating the First Amendment Free Exercise Clause.  For example, in November 2020, the Roman Catholic Diocese of Brooklyn and Agudath Israel of America obtained injunctions from the United States Supreme Court against New York Governor Andrew Cuomo’s emergency Executive Order imposing occupancy restrictions on houses of worship during the COVID-19 pandemic under a similar argument, namely that the order violated the Free Exercise Clause. (Roman Catholic Diocese of Brooklyn v. Cuomo (2020) 141 S.Ct. 63.)

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