State’s high court blocks local public health school closure orders

Local public health departments lack the authority to close schools in order to prevent the spread of a contagious disease, the Wisconsin Supreme Court ruled Friday.

The 4-3 decision, authored by Justice Rebecca Bradley, overturns a Dane County order closing schools to limit the spread of COVID-19 — an order that has been on hold for the entire 2020-2021 school year. Joined by the other three members of the court’s conservative wing, Bradley concluded that because the state’s public health law does not specifically authorize local health departments to close schools in controlling an epidemic, they are not allowed to do so.

In addition, she wrote, the Dane County school-closing order violated the religious freedom of private, parochial schools that the order included.

For example, for one group of parents challenging the order, “it was important for their children to attend St. Ambrose, a Catholic institution, so that its teachers could ‘closely mentor [their] students to foster a deep love of Jesus Christ and [to] encourage them to imitate a life of virtue and service to Christ and his Church,” Bradley wrote. Parents of other denominations made similar arguments, and religious school officials emphasized the importance of in-person attendance because their schools held religious services during the school day.

In a dissent joined by the court’s other two liberal justices, Justice Rebecca Dallet wrote that just because the state’s health law doesn’t include specific language about closing schools, there was no reason to single out that action as forbidden.

The state law “requires local health officers to ‘promptly take all measures necessary to prevent, suppress[,] and control communicable diseases,’ and authorizes them to ‘do what is reasonable and necessary’ for the prevention and suppression of disease,” Dallet wrote.  “Nothing about those words necessarily prevents Dane County’s Public Health Director from closing schools to suppress and control COVID-19.”

Friday’s ruling made permanent what the court had already done in a preliminary ruling early in the school year.

Public Health Madison & Dane County’s director, Janel Heinrich, issued an order closing schools at the start of the school year as a new wave of the COVID-19 pandemic was rising in Wisconsin. After a group of families, private schools and private-school organizations went directly to the state Supreme Court with a lawsuit challenging the order, the same four justices blocked it Sept. 10, 2020, with a temporary injunction. The order has not been in effect for the rest of the 2020-2021 school year.

“We are extremely disappointed in the court’s decision, which has much further reaching implications than just this current pandemic,” Heinrich said in a statement after Friday’s ruling was released.

“This decision hinders the ability of local health officers in Wisconsin to prevent and contain public health threats for decades to come,” Heinrich added. As a result, “we are no longer able to contain a measles, pertussis (whooping cough), or flu outbreak in a school. 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.”

Lawyers from the Wisconsin Institute for Law & Liberty (WILL), a conservative law firm that has represented several plaintiffs in cases challenging public health orders during the pandemic, were among those who represented families, schools and organizations who challenged the Dane County order.

“The order from Public Health Madison & Dane County closing all county schools was illegal, unnecessary, and unconstitutional,” said Rick Esenberg, WILL’s president and general counsel, 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.”