Empower Wisconsin | Aug. 13, 2020
MADISON — The Wisconsin Supreme Court this week rejected a petition from parents seeking relief from Milwaukee’s overreaching health officer.
The court’s dismissal effectively frees Milwaukee Public Health Commissioner Jeanette Kowalik to exercise sweeping power in issuing what one official described as an “11th hour” order blocking in-person education and disrupting the plans and lives of schools, teachers, students and parents.
Conservative Justice Rebecca Bradley was the lone dissenting vote on a court now led by a slim 4-3 majority.
The Waukesha parents who sought an injunction have enrolled their children in a Milwaukee faith-based school. On July 17, they learned Kowalik had ordered all Milwaukee schools, private included, to remain closed to in-class learning this fall.
“The Commissioner’s ‘order’ prevents any child from attending any in-person, faith based, private school in the City of Milwaukee. That is, unless the Commissioner by her sole and absolute authority allows it,” the petition states.
Kowalik’s action not only restricts the opening of schools, it “further restricts the private assembly at churches, inside private businesses, and prohibits children from playing sports together,” according to the court filing.
The commissioner has said private schools might be able to open — if they provide a plan “approved” by her. Still, according to the court documents, there is no appeals process.
Kowalik relies on a state law that gives unelected health bureaucrats enormous power in times of pandemic. Chapter 252 states:
“The local health officer shall promptly take all measures necessary to prevent, suppress and control communicable diseases … and 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.”
Kowalik has liberally used that authority.
The petition, filed by attorney Bernardo Cueto, concedes that Chapter 252 includes “broad language that, when read in isolation and in an unconstrained way may suggest that both the State Department of Health Services and Local Health Officers may have unlimited power to impose restrictions.”
But the Wisconsin Supreme Court ruling in May that struck down the Evers administration’s extended stay-at-home order rejected DHS Secretary-designee Andrea Palm’s “attempt to use that broad language to justify the same type of broad restrictions put back into place here by the Commissioner,” the court document states.
“More specifically with respect to schools, Chapter 252 indicates (and this Court recognized) that Secretary Palm would have some authority to ‘close schools.’ But Chapter 252 does not give the Commissioner any such authority, whether applied to a public school or a private school.”
The court asked the city to quickly respond. It did, with a 112-page brief insisting that the health commissioner was well within in her rights and the people who oppose her edicts really can’t stop her.
Assistant City Attorney Gregory Kruse argues that the plaintiffs were wrong in taking their case directly to the Supreme Court, and it notes that public and private K-12 schools are “allowed” to offer in-person classes “provided the schools has a COVID-19 safety plan.”
Such discretion is problematic. Kowalik has shown that she can giveth and taketh away. Her health order includes parameters that could close a school down with just two positive cases of COVID-19. The health czar issued an updated, stricter order on Tuesday, the day after the court declined to hear the case.
“Each submitted plan is required to have a minimum of three phases of education,” the order states. It must include a virtual/remote learning environment. “Hybrid learning” and then, after strict conditions are met, the school may go to in-class learning.
Jim Bender, president of School Choice Wisconsin, said the parental choice schools his organization represents don’t have a problem with the health requirements to open schools. They’ve put together safety plans based on Centers for Disease Control and Prevention and other health guidance.
The problem is, they’ve developed those plans over several months and they’ve established clear paths to open.
“What’s frustrating is that we’re having these discussions (now),” Bender said. “To come in the 11th hour with the force of law and create a complex system of approval to be able to open schools has proven problematic.”
Last month, Wisconsin Lutheran High School’s parents, students and faculty silently marched to Mayor Tom Barrett’s home. The feckless mayor said the health order was out of his hands. Other private schools have protested Kowalik’s order.
Bender said private parental choice schools were unaware that Kowalik had changed the rules in late June, allowing for only virtual learning. The health department, in its Phase 4, had permitted schools to open under certain conditions. Then, suddenly, it didn’t. It changed to 50 percent capacity, with the blessing of the health czar.
“It gives schools no predictably. You can’t open school on a dime,” Bender said.