Attorney General Andy Beshear asks the Labor Cabinet to withdraw subpoenas for sickout teacher names. | Photo by Olivia Krauth

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

Attorney General Andy Beshear asked Gov. Matt Bevin and the Labor Cabinet to withdraw “unlawful” subpoenas for sickout teacher information, he announced Tuesday.

Beshear is giving each 10 calendar days to rescind their requests to districts for names of teachers who called in sick to force district closures. If they don’t comply, Beshear says he will take them to court.

Deriding years of “petty attacks on our teachers,” Beshear said teachers’ right to protest education legislation is protected by the First Amendment.

Kentucky labor law prohibits public employees from striking, forming the basis for the Labor Cabinet to potentially issue citations for teachers who called in sick on sickout days.

The sickouts were not related to the conditions of teachers’ employment, but instead caused by bills teachers felt could hurt school funding and pensions. Therefore, the protests are considered free speech, according to Beshear, who says teachers’ First Amendment rights do not go away when they agree to work in the public sector.

Labor Cabinet spokeswoman Haley Bradburn said Beshear is “wrong.”

“The Labor Cabinet has complied and will continue to comply with Kentucky law,” she said.

Noting a similar situation in Michigan, Beshear said there is legal precedent showing a sickout is not a work stoppage or a strike. In that case, a Michigan district sued leaders of a sickout movement, arguing it was an illegal work stoppage. Courts ruled it was not as it didn’t center on teachers’ working conditions.

While another state’s case law cannot be used in Kentucky, it can help outline an argument, he said.

“The subpoenas here are not lawful, and that’s because what the teachers were engaged in is protected First Amendment speech,” Beshear said in a news conference Tuesday morning.

Last Wednesday, the Labor Cabinet subpoenaed Jefferson County and other districts that closed due to a teacher sickout. They asked for names of teachers who called in, any sick leave documentation and district correspondence made while trying to determine whether to cancel school. Districts have until May 10 to respond.

Education Commissioner Wayne Lewis made a similar request weeks prior after JCPS’ sixth sickout. He later asked districts to amend local policies to prevent sick leave from being misused to close schools. If sickouts didn’t stop, he said, he would recommend an investigation from the Labor Cabinet.

Lewis and Bevin said last week that they did not know of the subpoenas before they were issued. Beshear insinuated Bevin knew of the subpoenas Tuesday. If the governor wants to do what is right, Beshear said, he can withdraw the subpoenas.

Beshear, who is running for governor, pushed against criticism that Tuesday’s request was a political stunt. His job is to protect the citizens of Kentucky, he said.

“I’m going to stand up against wrong,” he said.