Sept. 11, 2020 – The Wisconsin Supreme Court (4-3) has temporarily blocked a Dane County public health order that prohibited public and private schools from providing in-person instruction, and required virtual learning until COVID-19 numbers decrease.

On Aug. 21, Public Health Madison & Dane County issued an Emergency Order that required all schools to start the year with virtual learning for grades 3-12 and prohibited in-person learning for students, besides students in kindergarten through second grade.

However, some school districts – including the Madison Metropolitan School District – had already decided to go to virtual before Dane County issued the public health order.

On Sept. 1, an amended public health order allowed for in-person instruction for students with a disability or individualized education program (IEP) needs.

Under the orders, schools could reopen for in-person instruction if the county’s 14-day average for new cases of COVID-19 fell below a certain level for at least a month.

Dane County has not met that threshold. In fact, the average number of COVID-19 cases doubled since last week, with more than 850 new cases from U.W.-Madison.

As a result of the August 21 health order, three lawsuits were filed, one by a Fitchburg mother with children in private elementary school and two others by the Wisconsin Council or Religious and Independent Schools and St. Ambrose Academy.

All three sought an original action in the Wisconsin Supreme Court to block the Dane County order and allow Dane County schools to reopen for in-person learning.

4-3 Majority Issues Injunction

Yesterday, a supreme court majority issued a temporary injunction that blocks the public health order and now allows public and private schools to bring students back. The decision may impact other counties with similar public health orders in place.

Districts can voluntarily choose to remain virtual, but the order blocks Dane County from imposing a mandatory prohibition on in-person learning while the cases are pending. In issuing the injunction, the majority said petitioners are likely to succeed on the merits.

“Multiple arguments – constitutional, statutory, and administrative – are lodged against the Order,” the majority’s order states, referring to the Dane County public health order.

“While reserving the remaining claims for later disposition, we conclude that local health officers do not appear to have statutory authority to do what the Order commands.”

The majority noted the state Department of Health Services (DHS) has statutory power to “close schools and forbid public gatherings in schools, and other places to control out breaks and epidemics,” but the powers of local health departments are different.

That is, the majority says local health departments do not have the express power to close schools, even though it can forbid public gatherings to control epidemics.

Janel Heinrich, the public health officer for Madison and Dane County, responded that schools were not “closed” – the school districts must still provide virtual learning.

“But this statute was drafted in 1923, so the most reasonable reading of what it means to ‘close schools’ would seem to be to preventing in-person instruction, not just preventing learning generally,” the majority’s order states.

The majority also said that failing to grant the temporary injunction could lead to irreparable harm for students as well parents who want their children to learn in-person.

“As Petitioners assert, many parents irreparably lose the full benefits of the communal education they chose for their children, including in-person instruction, relationships with teachers and other students, and religious and spiritual formation,” the order states.

The majority recognized the substantial interest in protecting the health and safety of Dane County residents as well as the “substantial interests in advancing childhood education and providing students a stable and effective learning environment.”

Ultimately, the majority concluded that “on balance the equities favor issuance of a temporary injunction, which now frees school districts to open in-person instruction.”

Dissent

Justice Rebecca Dallet wrote a dissent, joined by Justice Ann Walsh Bradley and Justice Jill Karofsky, the newest member of the court.

“Throughout the COVID-19 pandemic, certain members of this court have repeated the mantra of local control: that we should take care not to ‘usurp’ local officials' ability to control the spread of COVID-19 due to the virus's unique impact on each locality,” wrote Justice Dallet, citing a previous order in which justices encouraged local control.

“But today, those same justices interfere with a local health officer's ability to make difficult, health-based decisions pursuant to her statutory authority.”

Dallet argued that the supreme court should not take original jurisdiction of the case and instead let the Dane County Circuit Court decide a matter of import to Dane County.

“Given the numerous, unresolved factual questions and the purely local nature of this dispute, I conclude that Petitioners' challenges squarely belong in a circuit court, before the local judges elected by the citizens of that locality,” Justice Dallet wrote.

The dissenters also concluded that the petitioners did not show a reasonable probability of success on the merits to warrant the issuance of a temporary injunction.

“Emergency Order #9 does not favor secular activities over religious ones. Indeed, it does the opposite: it specifically exempts religious exercise from its restrictions on in-person gatherings,” Justice Dallet wrote.

“As for parents' rights to direct the education of their children, no Wisconsin court has ever recognized the right to in-person instruction in all circumstances.”

Justice Dallet also said granting an injunction “may cause irreparable harm in the form of risk of severe illness and death.”

Concurrence

Justice Rebecca Bradley wrote a concurrence, challenging Justice Dallet’s assertions. She said Dane County health officers had no statutory authority to issue the order in the first place, and the petitioners never filed their case in circuit court.

“This court removed nothing from any circuit court but instead exercises its constitutional authority to decide a case presenting significant issues of statewide importance,” Justice R. Bradley wrote.

“The court acts well within its constitutional authority, and rightly so. This is exactly the type of case the people of Wisconsin elected us to decide.”