IN THE BOONE CIRCUIT COURT

BOONE COUNTY, KENTUCKY

21-CI-______
Electronically Filed

AARON GILLUM, on behalf of himself and

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

On behalf of himself, and others similarly situated

(class certification sought under C.R. 23)

v.

Boone County Board of Education, et. al. DEFENDANTS

On behalf of themselves, and on behalf of

all other school boards, school districts, and
Superintendents
(Defendants’ class certification sought under C.R. 23)

MOTION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY

INJUNCTION

Plaintiffs, by and through Counsel, move this Court for an emergency restraining order

pursuant to C.R. 65.03, and supported by the Verified Amended Complaint filed in this matter.

They further seek the entry of a temporary injunction under C.R. 65.04. A memorandum in

support is attached hereto. Plaintiffs will likewise present live testimony in support of this

Motion at the hearing of this matter on the temporary injunction.

The harm is ongoing and irreparable.

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)

1
 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

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing upon the Defendants by ordinary U.S. mail,
this 2 day of February, 2021.

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)

NOTICE OF MOTION

Please take notice that this matter shall come before the Court at its next Motion Hour, unless
previously taken up by the Court.

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)

2
 MEMORANDUM IN SUPPORT

I. Facts

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. (Pl.’s Ver. Compl., ¶1). Mr. Gillum also bring

suit as next friends and guardians of his minor children. Id.

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. (Pl.’s Ver. Compl., ¶2). Defendants also

include the individual board members (in their official capacities only), and the Superintendent.

Id. 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.” Id.

Additional facts

In March, 2020, COVID-19 was found to exist in the Commonwealth of Kentucky;

Kentucky officials, including its Governor, took immediate action, including, without limitation,

moving education to a virtual or remote option. (Pl.’s Ver. Compl., ¶3). The Governor did this

through the issuance of an executive order, which suspended of existing statutes (set forth below)

that require in person educational instruction to students. Id.

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 below)

remained suspended. (Pl.’s Ver. Compl., ¶4).

3
 The Board, for its part, established virtual or remote instruction since the time of the

Governor’s order in March, 2020. (Pl.’s Ver. Compl., ¶5).

The Board established a calendar for instruction in the 2020-2021 school year.1 (Pl.’s

Ver. Compl., ¶6). Notwithstanding this calendar, which purports to provide instruction to

students, the 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.

Id.

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. (Pl.’s Ver. Compl., ¶7).

Starting late 2020 and continuing through the present and beyond, the Commonwealth of

Kentucky, and its Department of Public Health, has begun coordinating vaccination efforts for

COVID-19. (Pl.’s Ver. Compl., ¶8).

In particular, both the Moderna and Pfizer vaccines have been demonstrated to have high

degrees of effectiveness (over 90%). (Pl.’s Ver. Compl., ¶9).

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 -- by the

Kentucky Department of Public Health to receive the COVID-19 vaccine.2 (Pl.’s Ver. Compl.,

¶10).

School staff are eligible to receive the vaccines now, and have been eligible for weeks to

receive the vaccine. (Pl.’s Ver. Compl., ¶11).

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).
4
 As opposed to community spread in Boone County, the number of cases for children

from 5 to 17 years old have been relatively low.3 (Pl.’s Ver. Compl., ¶12).

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 conduit

of COVID-19 transmission, particularly where common sense mitigation measures are taken;

what is more, there are serious societal and other consequences to children not being in school,

including, without limitation, depression in children,6 suicides,7 and other troubling events.

(Pl.’s Ver. Compl., ¶13). This is particularly concerning where suicide is the second leading

cause of death in middle and high school age children in Kentucky.8 Id.

All evidence, both before and currently, is that the remote instruction of students is

significantly inferior to in person instruction.9 (Pl.’s Ver. Compl., ¶14). This first referenced

study concludes:

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

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).
6
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).
5
 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
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.

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, versus

traditional in-person instruction.10 (Pl.’s Ver. Compl., ¶15).

Other published research reveals similar negative impacts.11 (Pl.’s Ver. Compl., ¶16).

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 performance, and,

perhaps of a more concerning nature, on long term impacts to student.12 (Pl.’s Ver. Compl.,

¶17). These children of the Plaintiff have had serious negative impacts due to total or part time

virtual learning since the outset of the pandemic. (Pl.’s Ver. Compl., ¶18). NG has diagnosed

speech issues, for which he is receiving services (currently remotely), and neither child is

achieving the levels of achievement that they had with in person learning. Id.

As opposed to Boone County, other schools in the Commonwealth of Kentucky,

including in medium sized cities, are providing quality in-person instruction.13 (Pl.’s Ver.

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);
6
Compl., ¶19). Next door, in Gallatin County, schools are conducting 4-day-a-week in person

instruction.14 Id.

II. Law and Argument

A. Temporary Injunction and TRO Standard

C.R. 65.04 provides, in relevant part, that “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.”

In Kentucky, to establish entitlement to an injunction order a party must show harm to his

rights. Morrow v. City of Louisville, Ky., 249 S.W.2d 721 (1952). While the nature of this right

may be, and usually is, disputed, it is clear that some substantial claim to a personal right must be

alleged. Maupin v. Stansbury, 575 S.W.2d 695 (1978)

CR 65.04 further requires a clear showing that these rights will be immediately impaired.

Id. "In addition to the above substantive aspects of CR 65.04, various equitable considerations

must also be evaluated. For example, in any temporary injunctive relief situation the relative

benefits and detriments should be weighed." Kentucky High School Athletic Association v.

Hopkins, 552 S.W.2d 685 (1977). Obviously, this entails a consideration of whether the public

interest will be harmed by the issuance of the injunction or whether its effect will merely be to

maintain the status quo.

Thus, “the sufficiency of a verified complaint to support a temporary injunction should be

evaluated by a balance-of-the-hardships test. That rule, well recognized in the federal system,

14
https://www.gallatin.k12.ky.us/featured/1 (last visited 2/1/2021);
7
provides that if the complaint shows a probability of irreparable injury and the equities are in

favor of issuance, it is sufficient if the complaint raises a serious question warranting a trial on

the merits. Id., see, generally, Louisville Cycle & Supply Co., Inc. v. Baach, Ky., 535 S.W.2d 230

(1976).

Thus, "the trial court should determine whether plaintiff has complied with CR 65.04 by

showing irreparable injury. This is a mandatory prerequisite to the issuance of any injunction."

Maupin, 575 S.W.2d 695. "Secondly, the trial court should weigh the various equities involved.

Although not an exclusive list, the court should consider such things as possible detriment to the

public interest, harm to the defendant, and whether the injunction will merely preserve the status

quo." Id. "Finally, the complaint should be evaluated to see whether a substantial question has

been presented. 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. However, the actual overall merits of the case are not

to be addressed in CR 65.04 motions." Id. "Unless a trial court has abused its discretion in

applying the above standards, we will not set aside its decision on a CR 65.07 review." Id.

B. Kentucky law requires in person instruction for public school students

Section 183 of Kentucky’s Constitution

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.”

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 adequate

8
education, to be provided for by the General Assembly.” Id. at 189-190. Indeed, “education is

perhaps the most important function of state and local governments.” Id. at 190. “Today it is a

principal instrument in awakening the child to 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 reasonably be expected to succeed in life if he is denied

the opportunity of an education.” Id.

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 that those children in the

wealthier districts obtain.” Id. at 207.

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 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.

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

9
and the children who live in the rich districts must be given the same opportunity and access to

an adequate education.” Id.

Kentucky Statutes require In-Person Instruction

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

General Assembly has enacted KRS Chapter 158. 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.”

Moreover, KRS 158.033 provides, “(2) For a student to be eligible for home or hospital

instruction, a signed statement of the diagnosed condition requiring home or hospital instruction

shall be provided in accordance with KRS 159.030(2).” KRS 158.060 provides the definition of

a “school month”: 20 days of instruction “in the schoolroom.”

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

designated start and dismissal time.” (emphasis added). To qualify as a “student attendance

day,” instruction must occur in person.

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).

KRS 158.070(9) permits non-traditional instruction to be substituted for in person

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

10
 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.

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 Assembly

also included in KRS 158.070(11) the following provision:

(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.

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 General, through 2021

RS SB1.15 (Pl.’s Ver. Compl., ¶35). On February 2, 2021, 2021 RS SB1 was passed over the

veto of the Governor. Id. (Pl.’s Ver. Compl., ¶36).

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 specifying the suspension is

approved by the Attorney General in writing.” Id. (Pl.’s Ver. Compl., ¶37). The bill contained

15
https://apps.legislature.ky.gov/record/21rs/sb1.html (last visited 2/1/2021).
11
an emergency clause so as to take effect immediately at Section 11 of the Act. Id. (Pl.’s Ver.

Compl., ¶38).

The Attorney General has not approved the suspension of the cited in-person learning

requirements of KRS Chapter 158 in writing. (Pl.’s Ver. Compl., ¶39). 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 effect, and are being violated by the

Defendants.16 (Pl.’s Ver. Compl., ¶40).

In addition to the provision on non-traditional instruction being generally inadequate, the

Defendants’ failure to provide in person instruction violates the guarantees in the Kentucky

Constitution regarding the ability to acquire the same education provided by other school

districts in the state that are complying with the statutory requirements of KRS 158 by providing

the required in-person instruction. (Pl.’s Ver. Compl., ¶42).

Finally, fundamental constitutional and statutory rights are at stake in this matter

warranting immediate relief.

III. Conclusion

A temporary restraining order and temporary injunction should be issued.

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

16
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.
12
 /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

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing upon the Defendants by ordinary U.S. mail,
this 2 day of February, 2021.

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)

NOTICE OF MOTION

Please take notice that this matter shall come before the Court at its next Motion Hour, unless
previously taken up by the Court.

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)

13
 IN THE BOONE CIRCUIT COURT
BOONE COUNTY, KENTUCKY
21-CI-______
Electronically Filed

AARON GILLUM, on behalf of himself and

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

On behalf of himself, and others similarly situated

(class certification sought under C.R. 23)

v.

Boone County Board of Education, et. al. DEFENDANTS

On behalf of themselves, and on behalf of

all other school boards, school districts, and
Superintendents
(Defendants’ class certification sought under C.R. 23)

ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER AND

TEMPORARY INJUNCTION

Plaintiffs Motion for Temporary Restraining Order is hereby GRANTED.

Defendants are hereby enjoined to move to, and provide, an in-person instruction option for each
day scheduled as a school day under the school’s calendar, for any parent in the District who
wishes to send their children to school.

Nothing in this order precludes the Defendants from implementing any safety, sanitation,
screening, or other safety protocol they deem prudent.

IT IS SO ORDERED:

__________________________

14