Washington – The Supreme Court last Thursday refused to block an order by Kentucky Gov. Andy Beshear that bars in-person K-12 education until early January in areas hard hit by COVID-19, rejecting a plea from a private religious school.

The court said in an unsigned opinion that Beshear’s order will effectively expire anyway because schools are about to begin their Christmas vacation and they can open again in early January. A ruling against the state “would have little practical effect,” the court said.

Justices Samuel Alito and Neil Gorsuch dissented. Gorsuch noted that the governor issued a separate order that “virtually all other in-person activities to continue with only capacity restrictions. Movie theaters, indoor wedding venues, bowling alleys, and gaming halls remained open for business.”

The Danville Christian Academy had sued Beshear after he announced the closures in November in response to increased cases of COVID-19 around the state. His order applied to both public and private schools. The county that Danville Christian Academy is located in has one of the highest coronavirus incidence rates in the state, at 113.6 cases per 100,000 residents.

The school said it was being treated unfairly under Kentucky law and the U.S. Constitution. A district court agreed, blocking the order, but the federal appeals court in Cincinnati, Ohio, allowed Beshear’s order to remain in effect. Beshear said all schools were treated alike. Speaking at a news conference in Kentucky around the time the court ruled, he said: “In no way were religious schools treated any differently, we asked everybody to make the same sacrifice.”

Kentucky continues to reel from the pandemic. The governor on Thursday announced a record 54 new confirmed COVID-19-related deaths and 3,349 new confirmed coronavirus cases. Hospital capacity for ICU beds is at or above 80% in four parts of the state.

Kelly Shackelford, president and chief counsel of First Liberty Institute, the law firm that represented Danville Christian Academy, vowed to take the governor to court again if the order was reinstated.

“Rest assured, if the Governor does so on Jan 4th, we will file against him immediately,” Shackelford said in a statement.

Kentucky Attorney General Daniel Cameron echoed Shackleford’s warning in a statement Thursday evening, urging the governor to “carefully consider future executive action related to religious schools.”

Beshear had announced new public health guidance Dec. 14 for in-person learning in counties with high COVID-19 rates. Schools that comply may resume in-person learning on Jan. 11.