Supreme Court asked to throw out the order that closed Dane County schools

By: - August 27, 2020 2:00 pm
Wisconsin Supreme Court Chamber, State Capitol Building, Madison

Wisconsin Supreme Court Chamber, State Capitol Building, Madison “Capitol 02-15-2012 087” by Richard Hurd is licensed under CC BY 2.0

The same law firm that recently asked the Wisconsin Supreme Court to overturn Gov. Tony Evers’ statewide mask order has filed an emergency petition seeking to end the Dane County order that will keep children in grades 3-12 at home to start school online this fall.

The Wisconsin Institute for Law & Liberty (WILL) asked the Supreme Court to invalidate the Dane County school closure order in an original action filed Wednesday on behalf of a group of parents and private schools, as well as School Choice Wisconsin Action and the Wisconsin Council of Religious and Independent Schools.

“The order from Public Health Madison & Dane County closing all county schools lacks legal authority and violates the constitution and we hope the Wisconsin Supreme Court agrees to give it a review,” WILL’s Rick Esenberg said in a statement. “This order injected unnecessary chaos, confusion, and frustration into the lives of children, families, and school leaders preparing to navigate a difficult new school year.”

Order #9, issued on Friday Aug. 21 by Public Health Madison & Dane County, closed all schools in Dane County. Four of the five private schools that joined the lawsuit had planned to open in person on Aug. 24 and one school had already begun in-person classes.

In its filing, WILL argued that public health departments do not have the authority to shut down schools; that school closures are not necessary; and that Order #9 infringes upon the constitutional rights of parents to direct the education and upbringing of their children as well as their freedom of religion.

Plaintiffs include Abundant Life Christian School, High Point Christian School, Lighthouse Christian school, Peace Lutheran School and Westside Christian School. 

“This case challenges the authority of one unelected bureaucrat to upend the education plans of thousands of students and families and their schools located throughout Dane County via the stroke of a pen,” WILL stated in its emergency petition to the Court, echoing almost word for word the language used in its previous lawsuit on behalf of Republican legislators against Department of Health Services Secretary-designee Andrea Palm.

Furthermore, school closures are not “reasonable and necessary,” WILL argued, because “among other things, less than 10% of all COVID cases in Dane County were among children aged 0-17 and no deaths have occurred among those children testing positive in the County.”

In order #9, Janel Heinrich, the public health officer for Public Health Madison & Dane County explains, “While research on school-aged children continues to emerge and evolve, a number of systematic reviews have found that school-aged children contract COVID at lower rates than older populations. This is particularly pronounced among younger school-aged children.”

The order cites data that showed, as of Aug. 20, 9% of all COVID-19 cases in Dane County were among children aged 0-17, with cases among 0-4 year olds comprising 1.3% of all cases; 5-10 year olds comprising 2.7%; and 11-17 year olds comprising 5.3% of all cases. The order allows in-person instruction only for kindergarten through second grade until further notice.

New epidemiological data shows a rise in COVID-19 cases among Wisconsin children between the ages of 10 and 19 since early July. New confirmed cases increased from 25 on July 8 to a high of 150 new cases on July 15 before dropping back to 100 cases on Aug. 5.

“In kids younger than 18, for every 100 cases, one or two are hospitalized,” Dr. Ben Weston of the Office of Emergency Management told WTMJ News in an interview about the data. “It’s not an insignificant number and it’s something to be aware of the school season approaches.” 

Although many children are asymptomatic carriers of COVID-19, they can spread the disease to others, and children can also get severely ill, according to the Centers for Disease Control (CDC). 

An analysis of pediatric hospitalization in 14 states by the CDC found that “although the cumulative rate of COVID-19 associated hospitalization among children (8.0 per 100,000 population) is low compared with that in adults (164.5), one in three hospitalized children was admitted to an intensive care unit.”

The CDC also reported that Hispanic and Black children are particularly vulnerable, with hospitalization rates many times higher than their white peers.  Hispanic children are hospitalized at eight times the rate of white children and Black children at five times the rate of white children.

In its lawsuit, WILL argues that other, less restrictive measures that do not involve closing schools are available to local health departments, and that those departments don’t have the statutory authority to close schools.


In a memorandum to the Court, WILL  refers back to the Supreme Court’s decision overturning the statewide Safer at Home order promulgated by Palm. WILL quotes the statutory language that states that the  state Department of Health Services (DHS) “may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.” But, it reminds the Court, in its previous lawsuit it successfully argued that these actions are an overreach and illegal if they don’t go through the Legislature’s rulemaking process.

In the new case, WILL is arguing that while “DHS is explicitly given the authority under state law to close schools and to forbid public gatherings in schools … local health officials are not.”

The statutory language relating to local health departments is contained in Wisconsin Statute 252.03, which states that: 

“The local health officer shall promptly take all measures necessary to prevent, suppress and control communicable diseases, and shall report to the appropriate governing body the progress of the communicable diseases and the measures used against them, as needed to keep the appropriate governing body fully informed, or at such intervals as the secretary may direct. The local health officer may inspect schools and other public buildings within his or her jurisdiction as needed to determine whether the buildings are kept in a sanitary condition.”

WILL argues that the clause pertaining to school inspections means that “local health officers have the power to inspect schools but not the power to close them.”

The same statute also states: “Local health officers may do what is reasonable and necessary for the prevention and suppression of disease; may forbid public gatherings when deemed necessary to control outbreaks or epidemics and shall advise the department of measures taken.”

WILL interprets this language to mean that “Local health officials may only limit ‘public gatherings’ and are not authorized to close schools.”

Asked for comment, Sarah Mattes, communications supervisor for Public Health Madison Dane County replied, “We are confident that Order #9 is legal under the statute.”

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Ruth Conniff
Ruth Conniff

Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine where she worked for many years from both Madison and Washington, DC. Shortly after Donald Trump took office she moved with her family to Oaxaca, Mexico, and covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Trump. Conniff is the author of "Milked: How an American Crisis Brought Together Midwestern Dairy Farmers and Mexican Workers" which won the 2022 Studs and Ida Terkel award from The New Press. She is a frequent guest on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, CNN, Fox News and many other radio and television outlets. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. She lives in Madison, Wisconsin with her husband and three daughters.