All Posts by Empower Wisconsin

Supreme Court blocks order barring schools from opening

Empower Wisconsin | Sept 11, 2020

MADISON — In a stunning defeat to Dane County’s overreaching health director, the Wisconsin Supreme Court on Thursday agreed to hear three lawsuits against Public Health Madison & Dane County and issued a preliminary injunction against the agency’s order barring in-person education. 

The decision is a huge victory for Dane County’s private schools, forced to switch to an all-virtual learning model last month after the health department issued the 11th-hour order under the guise of COVID-19 concerns. 

“It’s light in the darkness,” said attorney Joe Voiland. “I have been fighting these orders since May, and we finally have light in the darkness.” 

Voiland, of Cedarburg-based Veterans Liberty Law, represents Sara Lindsey James, a single mother of two elementary students. 

The order consolidates three petitions asking the court to take original jurisdiction, meaning the plaintiffs won’t have to seek rulings in lower courts first. And the Supreme Court’s briefing schedule keeps the preliminary injunction in place for the next couple of months before justices hear oral arguments. 

There are strong signs that the health department will ultimately lose in its defense of the health order, which requires pre-K-12 students in 3rd grade and up to learn remotely for at least the first quarter of the school year. The decision by the conservative-led majority states the petitioners are “likely to succeed on the merits of their claim.” 

“While reserving the remaining claims for later disposition, we conclude that local health officers do not appear to have statutory authority to do what the Order commands,” the court ruled. 

“We are pleased the Court took swift action and agreed to review Dane County’s school closure order,” Rick Esenberg, president and general counsel for the Wisconsin Institute for Law & Liberty (WILL), said in a statement. “We are heartened that the Court concluded that our argument is likely to succeed on the merits and, for now, barred the closing of private schools. Our clients will be able to do what they do – educating children in Dane County.”

WILL filed an original action on August 26, on behalf of eight Dane County families, five private schools, School Choice Wisconsin Action, and the Wisconsin Council of Religious and Independent Schools (WCRIS). 

“All of WILL’s private school clients were planning on providing in-person instruction this fall and had invested significant resources into creating a safe environment for their students to return,” the Milwaukee-based civil rights law firm stated. 

Dane County Executive Joe Parisi issued a statement warning of dire consequences. 

“Public Health’s order prioritized the safety and well-being of kids, parents, teachers, and the communities they call home,” Parisi said. “Tonight’s order will jeopardize those goals and may lead to more illness and needless human suffering.”

St. Ambrose Academy in Madison also is suing Public Health Madison & Dane County Director Janel Heinrich and the agency. The grades 6-12 Catholic school raised more than $100,000 to fight the order, and has enlisted the help of a top constitutional attorney, Misha Tseytin, former solicitor general for the Wisconsin Department of Justice, to lead the legal challenge.

The Supreme Court’s order notes that state law gives specific powers to the state Department of Health Services, including the authority to “close schools and forbid public gatherings in schools, churches and other places to control outbreaks and epidemics.” The powers entrusted to local health officers, however, are different. 

“…(T)he legislature conspicuously omits the power to ‘close schools’ in its grant of authority to local health officers,” the majority wrote. The explicit power to “close schools” is statutorily absent. 

Heinrich argues she is not closing schools, just preventing in-person instruction. But, as the court notes, this statute was drafted in 1923, so the most reasonable reading of what it means to “close schools” would seem to be to preventing in-person instruction, not just preventing learning generally. 

Not surprisingly, the court’s three liberal justices dissented, standing with big government. Justice Rebecca Dallet argues the interference “with a local health officer’s ability to make difficult, health-based decisions pursuant to her statutory authority.” She decried the majority’s decision to take the cases and not allow a local circuit court judge to resolve a local dispute.” 

Justice Rebecca G. Bradley begged to differ, writing that the “court removed nothing from any circuit court but instead exercises its constitutional authority to decide a case presenting significant issues of statewide importance.” 

“This is exactly the type of case the people of Wisconsin elected us to decide,” Bradley wrote. “Declining to hear the case would amount to an abdication of the court’s institutional responsibilities constitutionally conferred on the state’s highest court.”

Voiland agreed the case has broader implications beyond the boundaries of Dane County. 

“This is not simply about reopening schools in Madison. The case will be about what authority, if any, these health officers have,” the attorney said. “This is about making sure government power is in check.” 

Listen to more:

Explore More
New texts show city of Milwaukee coordinating with Dem operatives

New texts show city of Milwaukee coordinating with Dem operatives

Empower Wisconsin | Sept. 29, 2022   By M.D. Kittle    MADISON — We know that Milwaukee Mayor Cavalier Johnson…

Read More »

September 30, 2022
Spotlight: 10 ways Wisconsin’s on the wrong track

Spotlight: 10 ways Wisconsin’s on the wrong track

By MacIver Institute staff MADISON — The Evers Administration agencies have released their 2023-25 budget requests and, as expected, they…

Read More »

September 30, 2022
FBI’s intimidation game

FBI’s intimidation game

Empower Wisconsin | Sept. 30, 2022 President Joe Biden’s FBI routinely uses heavily armed S.W.A.T teams to raid the homes…

Read More »

September 30, 2022
Student test scores plummet

Student test scores plummet

By M.D. Kittle MADISON — The Department of Public Instruction on Thursday morning quietly released the latest statewide test scores….

Read More »

September 30, 2022
Wisconsin GOP sues Evers for stalling veterans home records release

Wisconsin GOP sues Evers for stalling veterans home records release

By M.D. Kittle MADISON — The Republican Party of Wisconsin is suing Gov. Tony Evers on state open records law…

Read More »

September 29, 2022
All Woke Up: The woke Air Force

All Woke Up: The woke Air Force

Empower Wisconsin | Sept. 29, 2022 Nothing can stop the U.S. Air Force, with the possible exception of woke indoctrination….

Read More »

September 29, 2022

1 thought on “Supreme Court blocks order barring schools from opening

  • The Director’s reach exceeded her grasp; her grasp of law, her grasp of education, her grasp of people, her grasp of reality. Reaching for the stars is a laudable quest, reaching for a tyrant’s scepter is not.

Leave a Comment

Your email address will not be published.