Private schools, parents ask Supreme Court to block Dane County health order that limits in-person classes

The Wisconsin Supreme Court chambers.

Some religious schools and parents of children who attend them have asked the state Supreme Court to block a Dane County emergency health order that sharply limits in-person education.

In three separate actions asking the high court to weigh in directly, the petitioners say shutting down in-person schools violates their First Amendment rights to freely exercise their religion and direct the education of their children.

They also raise legal arguments similar to those the Legislature advanced in its June lawsuit over Gov. Tony Evers’ statewide stay-at-home order from the early days of the coronavirus pandemic: that an “unelected bureaucrat” does not have power to interfere with a family’s religious worship or education.

In that case, the high court ruled 4-3 striking down Evers’ order, agreeing that under state law, it expired after 60 days because the Legislature did not extend it.

This time, a different section of the same law is at issue, one that seems to confer similarly broad emergency powers in local health officials.

Janel Heinrich, the director of Public Health Madison & Dane County, issued Emergency Order 9 on Aug. 21, after some schools had already started, to take effect Aug. 24, when many others were scheduled to start.

It required all schools, public or private, in the county, grades 3-12, to start the year remotely, under a plan that allows different grade levels to return to in-person instruction based on a scale of various public health metrics. Kindergarten, first and second graders are allowed to attend school.

The petitioners argue that the ban is not narrowly tailored to advance the government interest in containing the spread of COVID-19 and cites the fact children 17 and under account for less than 10% of positive cases in Dane County, and no deaths. 

They say it would take too long to litigate the matter through the lower courts with school already underway.

Heinrich and her agency are represented by Waukesha lawyer Remzy Bitar and his firm, Municipal Law & Litigation Group. In a response to one of the petitions, Bitar disputes the claim that only legal issues are at play and says the case should start in circuit court.

While the petitioners say its unfair that bars, salons, gyms, businesses and other places are open, the response notes how the other institutions all differ markedly from schools in terms of the number of people together, indoors, for long periods.

Even day care centers and youth camps operate like pods, with fewer children and less comingling, the response argues.

Sara Lindsey James, a Fitchburg mother whose children started in person at a Lutheran school in Madison before it was ordered closed Aug. 24, filed the first petition. She is represented by former Ozaukee County Judge Joseph Voiland of Cedarburg.

His July lawsuit challenging local coronavirus-related health rules around the state was dismissed by a federal judge in July.

On Aug. 26, the conservative law firm Wisconsin Institute of Law & Liberty filed a similar petition on behalf of the Wisconsin Council of Independent and Religious Schools, School Choice Wisconsin Action, several Christian schools and parents. 

Two days later, eight Catholic schools, including St. Ambrose Academy, and parents of children who attend them, added a third petition. They are represented by Misha Tseytlin, former state solicitor general under Scott Walker who now practices with a Chicago law firm.

Misha Tsetylin

It notes that schools spent months developing detailed plans, per earlier county orders, to safely reopen. Tseytlin also argues that the statute defining local health officials’ duties says they can inspect schools, but reserves the right to close them to the head of the state Department of Health Services.

In a response to the St. Ambrose petition, Bitar wrote Heinrich’s was a proper exercise of her statutory power to “do what is reasonable and necessary for the prevention and suppression of disease.”

“It is not a complete shutdown of the school system; learning is still happening under this Order virtually and in other ways. Religious studies are not prohibited; to the contrary, religious teachings, instructions and missions are all allowed and can be accomplished virtually and in other ways.” 

In the St. Ambrose petition, Tseytlin argues the parents are currently suffering irreparable harm, while an injunction against the order would not harm the county.

“If higher COVID-19 case counts and increased death toll in the community are not irreparable harm, nothing is,” Bitar wrote in response. “Petitioners assume there is no harm to the community by their request, just as much as they seem to assume they have suffered irreparable harm”

Attorney General Josh Kaul filed amicus briefs to the first two petitions. His brief reads, in part, “For over a century, Wisconsin has maintained a public health infrastructure that empowers local health officials to be a critical line of defense, barring public gatherings and swiftly taking any actions that are reasonable and necessary to suppress spreading diseases. That is precisely what Dane County did here, barring in-person school instruction in order to prevent outbreaks of COVID-19.”

The Supreme Court has not ruled or set any hearing dates in any of the petitions, which would likely be consolidated into a single action if the court decides to hear the issue.

Since its ruling in May to strike down Evers’ order, liberal Jill Karofsky has replaced conservative Daniel Kelly on the court.

Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.