Wisconsin Supreme Court says Dane County cannot stop private schools from holding in-person classes during pandemic

Dane County health officials cannot prohibit private schools from holding in-person classes until the state Supreme Court makes a formal decision on the matter.

In a 4-3 ruling Thursday, the court issued an injunction temporarily blocking a Dane County emergency health order that sharply limited in-person instruction and agreed to hear the case.

Justices Patience Roggensack, Annette Ziegler, Brian Hagedorn and Rebecca Bradley were in the majority, with Bradley writing a separate opinion. Justices Rebecca Dallet, Ann Walsh Bradley and Jill Karofsky dissented.

Those in the majority argued that Janel Heinrich, the director of Public Health Madison & Dane County, does not have the statutory authority to close schools and that she overstepped in an emergency order Aug. 21 requiring all schools in the county, public and private, grades 3-12, to begin the year virtually.

The plan allowed 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.

Three petitioners asked the Supreme Court to weigh in on the Dane County order, arguing that shutting down in-person schools violates their First Amendment rights to freely exercise their religion and direct the education of their children.

The court consolidated the three petitions on the subject into a single case Thursday and, along with issuing the injunction, ordered the petitioners to submit briefs ahead of oral arguments on the case.

The Supreme Court is moving forward with the case because, the majority ruled Thursday, the petitioners are likely to succeed on the merits of their case.

Drawing on a 1923 state statute, those in the majority argued that while the state Department of Health Services is given the power to close schools, local health officials do not have that authority.

The DHS can “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics,” according to one statute. In the next section on local health officials’ power, the “close schools” phrase is left out — purposefully, the justices in the majority argue.

Local health officials instead have the power to “inspect schools … to determine whether the buildings are kept in a sanitary condition,” according to the statute.

The majority argued that “close schools” meant “preventing in-person instruction” because the statute was written in 1923.

Dallet, writing for the dissent, said the schools are not “closed” as the majority argued. They are still operating in certain capacities, including in-person classes for students in kindergarten, first and second grade and for students with disabilities.

She also said the issue of the Dane County emergency order was a local one that should be resolved in a circuit court, not in the state Supreme Court, since many of the facts pertain only to Dane County — such as infection rates and the county’s specific efforts to contain the virus.

Dallet also argued that the justices in the majority had pushed previously for local officials to handle their own COVID-19 responses instead of complying with blanket mandates at the state level.

“Those same justices interfere with a local health officer’s ability to make difficult, health-based decisions pursuant to her statutory authority,” she wrote.

The petitioners asked for the Supreme Court to weigh in on the Dane County order because they said it would take too long to litigate the matter through the lower courts with school already underway.

One of the petitioners was conservative law firm Wisconsin Institute of Law & Liberty, filing on behalf of the Wisconsin Council of Religious & Independent Schools, School Choice Wisconsin Action, several Christian schools and parents.

“We are pleased the Court took swift action and agreed to review Dane County’s school closure order. We are heartened that the Court concluded that our argument is likely to succeed on the merits and, for now, barred the closing of private schools. Our clients will be able to do what they do — educating children in Dane County,” WILL President Rick Esenberg said in a statement Thursday.

Contact Sophie Carson at (414) 223-5512 or scarson@gannett.com. Follow her on Twitter at @SCarson_News.