The Wisconsin Supreme Court on Friday sided with private school parents and students in striking down a Dane County order from last August that sought to close all schools to most students to limit the spread of COVID-19.
The 4-3 decision — with all four of the court’s conservatives in the majority — comes with the school year essentially over and as rising vaccination rates appear to have the virus in retreat. The court in September had also placed a temporary hold on the order, meaning schools were free to conduct in-person classes for almost the entire 2020-21 school year, as many religious schools did.
But the court’s decision overturning the order on both statutory and constitutional grounds could have future implications if there’s an outbreak of a dangerous virus variant or a completely new pandemic in the future.
The court found that because state statute does not specifically allow local health officers to close schools during a public health emergency, Public Health Madison and Dane County director Janel Heinrich overstepped her authority, and it deemed flawed her reliance on a part of state statute that says people in her position can take all “reasonable and necessary” actions to protect public health.
“The power to take measures ‘reasonable and necessary’ cannot be reasonably read as an open-ended grant of authority,” Justice Rebecca Bradley wrote for the majority. “Doing so would swallow the rest of the statute and render it mere surplusage.”
Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, which represented some of the plaintiffs in the case, hailed the decision.
“The order from Public Health Madison and Dane County closing all county schools was illegal, unnecessary and unconstitutional,” he said in a statement. “Even as the COVID-19 pandemic recedes, the court’s decision provides a critical correction that ought to prevent future abuses of power in an emergency.”
Heinrich said Public Health was “extremely disappointed” in the decision and warned that it could have dangerous ramifications in the future.
“This ruling means that under Wis. Stats. Sec. 252.03 we are no longer able to contain a measles, pertussis (whooping cough) or flu outbreak in a school,” she said in a statement. “This ruling impedes our ability to respond to any disease that might impact students, teachers and school staff, and impacts family and friends beyond the walls of the school. Unnecessary, preventable illness may certainly occur as a result of this ruling.”
The court also found that for religious schools, Heinrich’s order violated the Wisconsin Constitution’s religious freedom guarantee, and it questioned her decision to shutter schools but not many businesses, colleges or child care centers.
The order from Public Health, which was to take effect Aug. 24, barred schools from offering in-person instruction for grades 3-12 until the county met certain benchmarks showing the coronavirus was better contained. In effect, it would have applied almost exclusively to private schools because public schools in Dane County had already decided to start the year online for almost all students in almost every grade.
The timing of the order — issued the Friday before many private schools in Dane County were set to start the school year — angered religious school leaders and parents who said it upended plans to offer parents a choice between online and in-person instruction.
Between Aug. 25-28, three separate petitions were filed against the order by more than 40 parents, independent and religious schools, and groups that back school vouchers.
Writing for the dissent, Justice Rebecca Dallet argued that state statute does indeed give Heinrich the authority to close schools in a public health emergency.
“There is no textual evidence for the majority to conclude that when the legislature directed local health officers to take ‘all’ measures reasonable and necessary to control a disease outbreak, it did not mean exactly what it said,” she wrote. “Reading in to the statute a phantom restriction impossibly requires the Legislature to write statutes today that specifically address all potential situations in the future, even those ‘not readily imagined.’”
She also criticized the majority for bothering with the question of the Dane County order’s constitutionality, saying its “erroneous interpretation fully resolves this case, obviating any reason to reach the constitutional question.”
Public Health in December announced that schools could safely reopen to in-person learning with virus-mitigation measures in place and by bringing grades back over time. Many Dane County public school districts had already been offering some in-person schooling for some younger students and that trend accelerated with the beginning of the second semester in January.
The Madison School District did not start bringing the youngest elementary school students back to classrooms until March, with older elementary, middle and high school students beginning in April. It was the last of the 16 districts completely or predominantly within Dane County to return its middle and high schoolers to in-person learning.
Public health officials knew relatively early on in the pandemic that began in March 2020 that children were less susceptible to getting ill from COVID-19, but that they could pass the virus on to others.
As of Friday, Public Health Madison and Dane County did not know of any COVID-19-related deaths or hospitalizations linked to in-person schooling in the county.
Public Health Madison and Dane County became the first of two public health agencies in Wisconsin to have virus-mitigation efforts challenged in the high court after the city of Racine Public Health Department ordered schools to close from Nov. 27 to Jan. 15.
The court issued a temporary injunction against the Racine Public Health Department order in November and said it would not determine whether the order was legal until it decided the Dane County case, due to similarities between the two.
State Journal reporter Elizabeth Beyer contributed to this report.