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Parents ask court to stop health order closing schools

Empower Wisconsin | Aug. 27, 2020 

By M.D. Kittle 

MADISON — Dane County parents are pushing back against an overreaching public health officer who has barred in-person education at all county schools — public and private. 

On Tuesday, attorneys for Sara Lindsey James, a single parent from Fitchburg, filed a petition for review asking the Wisconsin Supreme Court to stop the health order, which requires  schools go to an all-virtual education model for students in grades 3 and up. Health officials say they are concerned that in-person instruction would spark a spike in COVID-19 cases.  

“This is a case about fundamental rights of children and the awesome power of government,” the petition states. “At issue is whether one unelected official has the power to order children to ‘stay home’ from school whether or not they are sick, or to prohibit them from gathering in-person with other children to receive a religious education.”

The court quickly ordered Public Health Madison & Dane Director Janel Heinrich to respond by 4 p.m. Friday.  

On Wednesday, the Wisconsin Institute for Law & Liberty also asked the Supreme Court to review the health order. The Milwaukee-based civil liberties law firm is representing Chris Truitt, a parent from DeForest. 

“The order by the Dane County health department to prevent our child from attending his sophomore year of high school in person is detrimental to his, and all students’, academic growth,” Truitt said in a press release. “Our son struggles with a learning disorder and the lack of in-person instruction is a barrier for his development. We were confident in our school’s plans to reopen safely and are now concerned that our son will fall further behind in his critical high school years.” 

Late Friday, Heinrich issued the order, which went into effect Monday. As Empower Wisconsin reported, the 11th-hour edict came just days before private schools around the county were set to begin the school year. They had spent the summer putting in place safety protocols to limit COVID exposure and were taken aback by the health department’s last-minute order. 

Dr. Charles Moore, principal at High Point Christian School in Madison and Mount Horeb, called the health order the “Friday Night Massacre.”

Three Angels Christian School in Monona had already begun the school year with in-person classes when Public Health Madison & Dane County ripped the rug out from under teachers, parents and students.

“Our parents aren’t happy. Our kids are devastated and, as teachers, we know this is not in the best interest of our students,” said Jeannie Buchholz, one of just two teachers at the little Seventh-day Adventist school.

James enrolled her children — in 4th and 7th grades — in Our Redeemer Lutheran School in Madison, according to court documents. Heinrich’s office provided requirements necessary to begin the school year in person, including the use of masks, social distancing and other limitations. 

Our Redeemer opened the school year on Aug. 19. A few days later, Heinrich issued the stringent order, and the private school was forced to quickly change plans. 

“Ms. James chose to enroll her children in a religious school because she sincerely believes it is essential that they receive a faith- based education … She believes that it is essential that her children’s education take place ‘in person’ and ‘together with others as part of the body of Christ,’” the complaint states.  

Heinrich’s order prevents the children from attending any in-person, faith-based, private school anywhere in Dane County.

St. Ambrose Academy in Madison signed a lease on a separate property so that it could properly socially distance its students, in compliance with other health orders. Angela Hineline, enrollment manager for the 6-12 Catholic school and St. Ambrose, told Empower Wisconsin this week that Heinrich’s sweeping order cost the school financially, but, more importantly, the right for parents and teachers to educate children in the way they see fit. 

WILL argues Wisconsin statutes do not give county health departments authority to order the closure of schools for in-person instruction. Public Health Madison & Dane County, the law firm asserts, cannot meet its burden of showing that school closures are “necessary” to combat COVID-19 based on Dane County’s own data and the less burdensome approach it has taken toward regulating other sectors of society. For instance, childcare in Dane County remains open but schools must close for grades 3-12.

More so, as Wisconsin Spotlight reported, Madison public schools are using school buildings as childcare facilities, where care providers will help students log on to virtual learning sessions taught by teachers from their homes. 

“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,” said Rick Esenberg, WILL’s president and general counsel. 

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