Wisconsin Supreme Court strikes down COVID school closures

MADISON, Wisconsin — The Wisconsin Supreme Court on Friday struck down the Dane County health officer’s order to close schools to in-person learning for most grades, ruling the order was an illegal infringement on parents’ rights to freely practice their religion, and based on authority never granted to local health departments by the Wisconsin Legislature.

In a 4-3 ruling, the state’s high court slapped down the actions and reasoning of Janel Heinrich, director of Public Health Madison & Dane County, who issued an emergency COVID-19 order in late August 2020 closing schools to in-person learning for grades 3-12. The court ruled local health officers do not have such legal authority, and that the action violated parents’ rights to freely practice their religion.

“Heinrich says she has general authority to do what is reasonable and necessary for the suppression and prevention of disease, and that includes closing schools. She is incorrect,” wrote Justice Rebecca Grassl Bradley for the court’s majority. “If local health officers’ authority to take measures ‘reasonable and necessary’ included the extraordinary power to close schools, then the Legislature’s specification of particular powers, such as the power to ‘inspect schools,’ would be superfluous. The power to take measures ‘reasonable and necessary’ cannot be reasonably read as an open-ended grant of authority.”

After Heinrich issued the closure order on Friday, Aug. 21, three suits were filed asking the Wisconsin Supreme Court to take original jurisdiction in the matter. Plaintiffs included a coalition of Catholic schools led by St. Ambrose Academy in Madison; a group of parents, schools and associations including the Wisconsin Council of Religious and Independent Schools; and parent Sarah Lindsey James. The Thomas More Society joined the St. Ambrose case and filed briefs with the court. In September 2020, the court issued a temporary injunction against the closure order and heard oral arguments in the case on Dec. 8. Catholic and other private schools were allowed to be open for the remainder of the academic year.

The court ruled that Dane County’s actions not only lacked legal authority, but also infringed on parents constitutionally protected rights to freely practice their religion. Plaintiffs had argued that attending Holy Mass and receiving sacraments such as confession were integral parts of a Catholic education that could not be replicated by online schooling. The court agreed, citing the extraordinary protections for religious freedom in the Wisconsin Constitution.

The closure order failed to meet the “strict scrutiny” standard used when laws are alleged to violate freedom of religious exercise as guaranteed under Article I, Section 18 of the Wisconsin Constitution, the court ruled. Courts look at whether the state has a compelling interest to take an action, and whether the goal could be met by a less-restrictive alternative.

“Indeed, the order did not merely burden academic schooling; it burdened the exercise of religious practices,” the ruling said. “While Heinrich allowed schools to use their premises for child care and youth recreational activities, the government barred students from attending Mass, receiving Holy Communion at weekly Masses with their classmates and teachers, receiving the sacrament of Confession at school, participating in communal prayer with their peers, and going on retreats and service missions throughout the area.”

“Heinrich’s order not only impeded the petitioners’ religious expression and practice, it outright precluded both from occurring in petitioners’ schools altogether,” the court said. “The petitioners’ exercise of their sincerely held beliefs was unquestionably ‘burdened by the application’ of the order…”

The ruling was hailed by plaintiffs as an important hedge against future government overreach, while Heinrich said it will prevent the agency from controlling outbreaks of other diseases such as measles and influenza.

“I am deeply grateful that the Supreme Court has now definitively held that Dane County acted unlawfully and unconstitutionally in attempting to close our schools last fall to in-person instruction, including religious instruction,” said attorney Misha Tseytlin, who represented St. Ambrose and other Dane County Catholic schools. “The Wisconsin Constitution gives broad protections to the religious liberty of Wisconsinites, and the Supreme Court now made clear that those protections apply in both good times and challenging times. ”

Rick Esenberg, general counsel for the Wisconsin Institute for Law & Liberty (WILL), said the court held that the closure order was “illegal, unnecessary, and unconstitutional. 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.” Esenberg and WILL represented one of the plaintiff groups in the case.

“This has been an overreach of major proportions by a local health official who ignored the fundamental constitutional right to the free exercise of religion for parents, students, and school personnel by ordering these institutions to shut down and prohibiting in-person education,” said Erick Kaardal, special counsel for the Thomas More Society. “It was a slap in the face to educational choice, an affront to families who believe that children should be in school, and a direct violation of parental rights.”

Joan Carey, executive director of St. Ambrose Academy, lauded the precedent-setting value of the ruling — and noted the interesting timing of the book-ends in the case. “Our plea for upholding the right to educate our children as we see fit was presented before the court on the Solemnity of the Immaculate Conception, and our victory was declared on the Sacred Heart of Jesus,” she said. “Our school strives daily to bring students to the Sacred Heart of Jesus through the Immaculate Heart of Mary. We are here to guide them to form their hearts like those of Jesus and Mary. God’s timing for this court case couldn’t have been more perfect.”

St. Ambrose, a classical Catholic academy serving grades 6-12, joined other private schools in enacting COVID-19 mitigation protocols last fall. Measures included adding classroom space to enable distancing of students, and requiring enhanced hygiene practices such as hand-washing and wearing of face masks. There were no large-scale outbreaks of COVID-19 in the schools, although some chose to move to virtual learning between Thanksgiving and Christmas as a precaution. Public schools had opted for virtual instruction for 2020-21.

“I was confident from the start that our school could put together a plan that would keep our doors open,” said Constance Nielsen, dean of faculty at St. Ambrose Academy. “I was also confident that our students and families would responsibly follow best practices. I know that not every school was in a position to open this way, but I am grateful to the court for giving our school and our parents the opportunity to make these decisions for ourselves so that our kids could learn, and pray, and grow together in person. Every day of this school year was a blessing for our community and our students.”

Father Scott Jablonski, pastor of St. Francis Xavier Catholic Church in Cross Plains, said parents and teachers worked together on virus-control protocols so students would be safe in the classroom. “Our teachers were and are amazing, our families were diligent and very cooperative in following all of our protocols, and our students were very happy and blessed,” said Jablonski, one of the plaintiffs in the case. “As such, I am thrilled to hear this morning that the court’s majority has ruled in our favor. In short, we won and our kids are better off today because of these efforts.”

The high court cited incongruities in the emergency health orders issued by Public Health Madison & Dane County, such as allowing in-person instruction in kindergarten, first and second grades; and allowing colleges and universities to remain open during the pandemic.

“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,” the ruling said. “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.”

“In total, the Order fails the strict scrutiny test: the application of the order burdens the petitioners’ sincerely held religious beliefs, and Heinrich fails to demonstrate why the order, although based upon a compelling interest, cannot be met by less-restrictive alternatives.”

Heinrich and Public Health Madison & Dane County began issuing emergency orders on May 13, 2020, the same day the Wisconsin Supreme Court struck down Gov. Tony Evers’ “Safer at Home” program that largely restricted the state’s population to their homes. The agency cited state statutes that refer to the powers of the state Department of Health Services, not to local health officers, the court ruled. It cited changes to state law going back to 1883 that could have empowered local health departments with such authority, but did not.

“If Heinrich’s argument were correct, then the general provision would essentially afford local health officers any powers necessary to limit the spread of communicable diseases. This cannot be,” the court ruled. “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. Because we are a court and not the Legislature, it would exceed the constitutional boundaries of our authority to rewrite the law in this manner.”

Heinrich said she was “extremely disappointed” in the court ruling, which “has much further reaching implications than just this current pandemic.” The decision “hinders the ability of local health officers in Wisconsin to prevent and contain public health threats for decades to come,” she said.

As a result of the ruling, under state statutes “we are no longer able to contain a measles, pertussis (whooping cough), or flu outbreak in a school,” Heinrich said. “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.”

The Wisconsin Supreme Court action was the fourth in just over a year that put checks on Wisconsin government actions taken during the COVID-19 pandemic. In late March, the court struck down Gov. Evers’ repeated use of emergency declarations to impose statewide restrictions such as wearing of masks in public. Five of his six emergency declarations were illegal, the court said. Two weeks later, the court ruled Evers over-stepped his authority by regulating the size of gatherings at businesses, restaurants and other venues in order to control COVID-19. All of those rulings were by the same 4-3 margin.

The cases involved in Friday’s ruling include Sarah Lindsey James v. Janel Heinrich, Wisconsin Council of Religious and Independent Schools et al v. Janel Heinrich, and St. Ambrose Academy Inc. et al v. Joseph T. Parisi et al.