Last August, days after some schools had opened and days before most schools were ready to open, the Dane County Health Department issued a school closure order for all schools, public and private serving grades 3-12.

School Choice Wisconsin Action, along with several private schools and other stakeholders, immediately filed suit through the Wisconsin Institute for Law & Liberty.  The petition asked the Wisconsin Supreme Court for an injunction that would allow schools to open while the Court deliberated. The injunction was granted allowing private schools in Dane County to open for in-person instruction, but the Court’s final decision was not rendered until June 11, 2021.

In a 4—3 decision, the Wisconsin Supreme Court ruled that Janel Heinrich, in her capacity as Public Health Officer of Madison and Dane County, did not have the statutory power to issue an emergency order to close schools under Wis. Stat. § 252.03. As summarized by Anthony LoCoco at WILL, the Court ruled that in addition to lacking the statutory authority to mandate the schools to close, the Public Health of Madison and Dane County order violated the Wisconsin Constitution’s religious liberty provision.

Rebecca Bradley delivered the opinion of the court. From the ruling:

“Those portions of Heinrich’s Order restricting or prohibiting in-person instruction are both statutorily and constitutionally unlawful, and are hereby vacated. Local health officers do not have the statutory authority to close schools under Wis. Stat. § 252.03. Article I, Section 18 of the Wisconsin Constitution——not Jacobson——controls the constitutional question. Because Heinrich’s Order violates the Petitioners’ fundamental constitutional right to the free exercise of religion, it cannot stand.”

Many schools across Wisconsin provided an in-person or hybrid learning environment that balanced student safety, academic structure and concern for the overall well-being of children.  According to the Court, the local health officials who sought to prevent schools from opening overstepped the authority granted to them by the legislature.  The decision allows schools to now and in the future put the interests of their students at the forefront of their decisions and take the steps necessary to keep them safe while learning in person.

School Choice Wisconsin thanks the Wisconsin Institute for Law & Liberty for their excellent representation in this case and another win for freedom in education!