Dane County schools ruling hints at future health agency limits

Political analyst sees ‘clawback’ to longstanding public health officials’ authority

Children in an elementary school classroom. (Getty Images photo)

The state Supreme Court ruling that blocked Dane County from delaying schools from holding classes in person to guard against the spread of COVID-19 may be temporary, but it could have broad, long-term reach when it comes to public health.

That’s the assessment of a political scientist who has been studying the polarization and politicization of public policy.

Philip Rocco
Political scientist Philip Rocco, Marquette University (MU website photo)

“The question that arises is, what is going to be left of the power of local public health officials to make decisions about controlling the spread of the virus,” says Philip Rocco of Marquette University. Rocco has focused his political science research on how the development of healthcare policy such as the Affordable Care Act has been disrupted by ideological divisions.

The Sept. 10  ruling temporarily blocked a requirement that all schools in Dane County, public or private, limit in-person classes to grades K-2 and to one-on-one special education students, and that they hold all other classes virtually. The provision was added on Sept. 1 to Emergency Order #9 from Public Health Madison & Dane County, issued Aug. 21.  

In a 4-3 unsigned decision, the court issued the temporary injunction in response to three lawsuits filed against the public health agency, which the justices consolidated into a single case.

The plaintiffs, a private school, an association of religious and private schools, and a parent representing the families of private school students, petitioned the high court to hear the case directly, bypassing local courts, which the majority supporting the decision also granted.

Although it is a temporary injunction until the case itself is argued and decided, the decision signaled the likely outcome. Based on initial briefs, the plaintiffs “are likely to succeed on the merits of their claim,” the decision states, and “we conclude that local health officers do not appear to have statutory authority to do what the Order commands” in limiting in-person classes.

“It really does represent a meaningful diminishment of local authority of local public health officials that mirrors the Supreme Court’s butchering of the state’s ability to act as a public health entity,” Rocco tells the Wisconsin Examiner — referring to the court’s ruling on May 13 that ended Wisconsin’s Safer at Home order.

In that 4-3 decision, the court ruled that Andrea Palm, secretary-designee of the state Department of Health Services (DHS), overstepped her authority in extending Safer at Home at the direction of Gov. Tony Evers. The majority ruling held that the Safer at Home order constituted an administrative rule, requiring approval by the state Legislature — something never mentioned in the statute that authorizes the DHS secretary to issue public health orders.

Andrea Palm DHS
Department of Health Services Secretary-designee Andrea Palm at a COVID-19 briefing

All four of the court’s conservative justices supported Thursday’s Dane County ruling, which was unsigned, while one of them, Justice Rebecca Bradley, wrote a separate rejoinder to a dissent by the court’s liberal minority.

The dissent, written by Justice Rebecca Dallet with the concurrence of Justices Jill Karofsky and Ann Walsh Bradley, challenged the majority’s assertions about the limits on local officials’ authority. Dallet also argued that the court was erring in accepting the case instead of directing it to local courts.

On Friday, Public Health Madison & Dane County referred questions about the new ruling’s broader public health implications to Marci Paulsen in the Madison City Attorney’s office.

“I don’t see broader implications,” Paulsen told the Wisconsin Examiner. “This is an interim decision and we are awaiting a merits decision” — a final ruling in the lawsuit — “which could have a different outcome.”

The court’s briefing schedule suggests that decision will be at least two months away.

But the court majority’s willingness to block the local health department so early in the legal process opens up “a huge change in the way that the court conceptualizes when it offers injunctive relief,” says Rocco.  

“What that would suggest is that we might see other challenges to local orders in other jurisdictions,” he adds. “The question that arises is, what is going to be left of the power of local public health officials to make decisions about controlling the spread of the virus?”

Modern public health powers are nothing like what existed in the last comparable pandemic a century ago.

“What has changed since the 1918 flu is that we have created a much more robust infrastructure of laws that enable state and local officials to control the spread of disease — powers that they did not have in 1918,” Rocco says. “And I think what decisions like this represent are pretty substantial — not just chipping away at, but pretty substantial clawback to that authority.”

Besides the immediate impact on protecting lives and health, he worries about the longer term cost of dismantling the legal support for public health institutions.

“What effect does this have on recruitment and retention of talented officials to lead in public health departments?” Rocco asks. “Because if you are hired as a public health official, and your job is, among other things, to control the spread of disease, and now you have an institution that basically prevents you from fulfilling the job that you were hired to do — how many people are really going to want to do that job? And how many really talented people are going to want to do that job?”

Budgets and resources to support public health agencies are falling, which has hampered their ability “to do the  jobs that they were created in law to do,” he says. “In addition to being hamstrung fiscally, now they’re hamstrung from a regulatory perspective.”

Conflicts in the courts over public health aren’t limited to Wisconsin, but nowhere do the battle lines appear to be as sharply drawn as here.

“The Wisconsin Supreme Court stands alone among state supreme courts in the way it has responded to those challenges,” Rocco says. “Wisconsin’s State Supreme Court is an outlier among outliers in terms of its imposition of itself as the main public health authority in the state. If you want to  talk about a poster child for judicial overreach, look no further than Madison, Wisconsin.”

Erik Gunn
Senior Reporter Erik Gunn reports and writes on work and the economy, along with related subjects, for the Wisconsin Examiner. He spent 24 years as a freelance writer for Milwaukee Magazine, Isthmus, The Progressive, BNA Inc., and other publications, winning awards for investigative reporting, feature writing, beat coverage, business writing, and commentary. An East Coast native, he previously covered labor for The Milwaukee Journal after reporting for newspapers in upstate New York and northern Illinois. He's a graduate of Beloit College (English Comp.) and the Columbia School of Journalism. Off hours he is the Examiner's resident Springsteen and Jackson Browne fanboy and model railroad nerd.