Wisconsin Supreme Court Strikes Down Local Health Officials Closing Schools

On Friday, the Wisconsin Supreme Court ruled that local health officers do not have the statutory power to close schools.

As detailed in the ruling, in March 2020, Wisconsin Democrat Governor Tony Evers declared a public health emergency in Wisconsin. The next day, then Secretary-Designee of the Department of Health Services (DHS), Andrea Palm, issued an order mandating “the closure of all public and private Wisconsin schools for purposes of [in-person] instruction and extracurricular activities.” On March 24, 2020, Palm issued a statewide “Safer at Home Order,” which closed “public and private K-12 schools . . . for [in-person] instruction and extracurricular activities.”

On May 13, 2020, Madison and Dane County Public Health Officer Janel HeinrichHeinrich issued Emergency Order #1, which “adopted the provisions” contained in the “Safer at Home Order,” including the mandate closing schools. On May 18, 2020, Heinrich issued Emergency Order #2, which expressly reiterated that public and private K-12 schools must stay closed for in-person instruction, but allowed them to provide “[d]istance learning or virtual learning.”

After Heinrich issued a series of executive orders, one from June 2020 reopening K-12 schools for “pupil instruction and extracurricular activities” effective July 1, 2020, then another on July 7, 2020, delineating a series of safety protocols, on August 21, 2020, three days before the start of the 2020-21 school year for many schools, Heinrich released Emergency Order #9, citing Wis. Stat. § 252.03 (2017-18) as an authority. The order closed all public and private schools for in-person instruction for students in grades 3-12.

The plaintiffs argued that Heinrich exceeded her statutory authority under § 252.03 and violated their fundamental right to the free exercise of religion under Article I, Section 18 of the Wisconsin Constitution, as well as parents’ fundamental right to direct the upbringing and education of their children under Article I, Section 1 of the Wisconsin Constitution.

The court stated: “We agree with the Petitioners and hold: (1) local health officers do not have the statutory power to close schools under Wis. Stat. § 252.03; and (2) Heinrich’s Order infringes the Petitioners’ fundamental right to the free exercise of religion guaranteed under Article I, Section 18 of the Wisconsin Constitution… Accordingly, those portions of the Order restricting or prohibiting in-person instruction are unlawful, unenforceable, and are hereby vacated.”

 Justice Rebecca Bradley stated, “What is reasonable and necessary cannot be reasonably read to encompass anything and everything. Nothing in the text of the statute confers upon local health officers the power to close schools. To conclude otherwise would be tantamount to striking language from the statute.”

“Bradley further asserted that Heinrich’s decision, by her own admission, was unnecessary to curb the spread of COVID-19,” the MacIver Institute noted. She wrote, “The Order acknowledged that a ‘number of systematic reviews have found that school-aged children contract COVID at lower rates than older populations’ and that ‘[o]utbreaks and clusters among cases aged 5-17 have been rare.’”

“The Order failed to explain why college-aged students could continue to live, learn, and socialize in close communities, while students in grades 3-12 were consigned to computer screens. While the Order demonstrates the availability of less restrictive alternatives and employs them for college students as well as students in grades K-2, the Order denies them to students in grades 3-12,” Bradley added.

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