Attorney says Wisconsin COVID-19 closing order is unconstitutional

MADISON, Wisconsin — A coalition of Catholic schools will seek an emergency injunction from the Wisconsin Supreme Court to allow all Dane County schools to open in-classroom instruction on September 7, the schools’ attorney said Wednesday. The Catholic schools join two other legal challenges to a health official’s last-minute order banning in-person classroom instruction due to the coronavirus.

Misha Tseytlin of Chicago, an attorney with Troutman Pepper Hamilton Sanders, LLP, delivered a cease-and-desist demand to Dane County Executive Joe Parisi and Janel Heinrich, director of Public Health Madison & Dane County. He described as unlawful and unconstitutional the Emergency Order #9 issued after 5 p.m. on Friday, August 21. Tseytlin’s letter demands the closure order be rescinded by noon Friday, August 28 or he will file for an emergency injunction.

“Should the county refuse to withdraw its flagrantly unlawful order by that time, my clients will be forced to pursue emergency relief in the Wisconsin Supreme Court,” Tseytlin wrote. “The school closure order is both unconstitutional and unlawful and deeply harms parents, children and schools across the county. The order is unconstitutional and unlawful as to all private schools in the county, and that unconstitutionality is even clearer for religious schools.”

The coalition is headed by St. Ambrose Academy of Madison, a classical Catholic school covering grades 6 to 12. St. Ambrose is joined by St. Maria Goretti Catholic Church, Blessed Sacrament Catholic Church, and St. Dennis Catholic School, all of Madison; Immaculate Heart of Mary Catholic Church and School, Monona; St. Peter Catholic Parish and School, Ashton; and St. Francis Xavier Catholic School in Cross Plains. The group has raised nearly $98,500 for the legal challenge in five days using the Christian crowd-funding site GiveSendGo.

Public Health Madison & Dane County’s order decrees that students from grades 3-12 cannot attend in-person classes for the fall 2020 school term. The order primarily affects private and parochial schools, since most public school districts have opted for internet-based virtual instruction. Dropped after close of business on August 21, the order gave parents just 60 hours to find child care and left the schools scrambling after spending months planning for reopening of classrooms.

Also on Wednesday, the Wisconsin Institute for Law & Liberty (WILL) filed an original action with the Wisconsin Supreme Court, asking that the closure order be struck down. That filing was made on behalf of five private schools, eight Dane County families, 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,” said Rick Esenberg, WILL president and general counsel. “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.” Earlier in the week, WILL filed suit against Wisconsin Gov. Tony Evers for his July 30 statewide emergency order that requires most people to wear a mask while in indoor public places, claiming the governor cannot declare a second emergency related to the COVID-19 pandemic. Evers’ first COVID emergency declaration expired in mid-May.

Earlier this week, parent Sarah James also filed suit against Dane County for the closure order, citing the same legal arguments as WILL and Troutman Pepper. The suit said James’ children had already been in classes for two days when the county order was issued. The Wisconsin Supreme Court gave Public Health Madison & Dane County until 4 p.m. Friday to respond to that lawsuit.

Tseytlin said the school-closure order “unlawfully burdens my clients’ free exercise of their religion and rights to raise their children” and presents a “grave burden” on parental rights to instruct their children in faith. “Although Dane County has a compelling interest in reducing the spread of COVID-19, the order plainly does not further that interest in a narrowly tailored way,” he wrote. “The order closes my client-schools and similar schools throughout the county, yet allows higher-education institutions — including the University of Wisconsin, which enrolled over 40,000 students in fall 2019 — to reopen, even as to their dormitories.”

The closure order also exceeds Dane County’s statutory authority, Tseytlin wrote, noting that county health officials have ability to inspect schools, but closing authority rests solely with the State Department of Health Services. “Thus unlike the Department of Health Services, the county has no power to order schools closed,” Tseytlin wrote. “This difference in authorities over school closures is consistent with Wisconsin’s primacy of a statewide policy toward the education of Wisconsin’s children.”

Tseytlin’s letter said the county’s order “inflicts grave harms” on parents and schools. “All of my client-parents are devout, practicing Catholics, whose faith compels them to seek religious education for their children,” he wrote. “Only in-person education satisfies that solemn obligation, as only in person may these students receive Holy Communion at Mass, confess their sins to a priest through the Sacrament of Reconciliation or pray together in the community of fellow students and teachers.”

Parisi defended the county’s closure order and pledged to defend it in court. “The order for schools is lawful and we will defend it vigorously, because the reason Public Health put it in place is worth fighting for—the health of our kids and community,” Parisi said in a statement. “There has been a 90% increase in the number of COVID-19 cases among children in the United States in recent weeks—21% in the past two weeks alone, according to the American Academy of Pediatrics and the Children’s Hospital Association. Over 90 children have died. The science community still doesn’t entirely know the lifelong impacts for those who test positive at a young age. We will all learn together over the course of the next generation the true effect of what it meant to once have had COVID-19.”

Sarah Mattes, communication supervisor for Public Health Madison & Dane County, added, “We are confident that Order #9 is legal under the statute.”

The Dane County schools order and resulting legal fights have only sharpened debate on how government agencies are handling efforts to control the spread of the coronavirus that causes COVID-19. The federal Centers for Disease Control & Prevention advises that schools can safely open this fall. In May, the Wisconsin Supreme Court struck down Gov. Evers’ “Safer at Home” program that largely restricted state residents to their homes. It ruled the state of Wisconsin did an illegal end run on the proper oversight of the Wisconsin Legislature.

Since that ruling, however, a number of counties enacted their own sweeping regulations governing movement and behavior of people in public and private spaces. The Diocese of Madison worked with Troutman Pepper and the Becket Fund for Religious Liberty to challenge Public Health Madison & Dane County’s orders limiting attendance at Holy Mass to 50 people, regardless of building size or disease-mitigation efforts. After a threatened lawsuit by the diocese, the city of Madison and Dane County backed off. The diocese supports the St. Ambrose legal challenge, but it has not filed its own legal action. Bishop Donald J. Hying could not be reached for comment on Wednesday.

Since the coronavirus began spreading in the United States in January, Wisconsin has registered 72,260 cases of COVID-19 and 1,100 deaths that can at least in part be attributed to the disease. On August 26, Milwaukee County led the state with 118 new cases, followed by Brown County (Green Bay) with 69 and Waukesha County with 67. Dane County, which has the second-largest population in Wisconsin, was fourth, with 48 new cases. According to an analysis of state data by the MacIver Institute, nearly 64,000 people have recovered from COVID-19 in Wisconsin. Of the 7,430 people believed to have active infection, 354 are hospitalized. Wisconsin has 11,500 hospital beds.