Wisconsin Supreme Court Overrules County’s Order, Allows Private Schools to Open

September 14, 2020 Updated: September 14, 2020

Local health officials in Wisconsin don’t have the legal authority to shut down private schools to contain the spread of the CCP virus, the state’s Supreme Court ruled.

“This is a great victory for religious liberty,” attorney Erick Kaardal told The Epoch Times in an interview.

Kaardal, special counsel to the Thomas More Society, a national public interest law firm headquartered in Chicago, is part of the team representing the independent schools and working directly with St. Ambrose Academy, one of the schools that petitioned for relief.

“Once again, a court has stepped in and stopped the government from shutting down Christian and private schools,” Kaardal said. “It’s real late in the day for Dane County to go off the constitutional scripts and attempt to shut down Christian and other private schools.”

Located in southern Wisconsin, Dane County includes the state capital of Madison.

The cases, consolidated by the court, are James v. Heinrich, Wisconsin Council of Religious and Independent Schools v. Heinrich, and St. Ambrose Academy Inc. v. Parisi.

The litigants challenged Dane County Emergency Order #9, which was issued Aug. 21 and amended Sept. 1. The ruling, which includes a temporary injunction, was approved by the Wisconsin Supreme Court on a 4–3 vote.

The court ruled the petitioners “are likely to succeed on the merits of their claim,” concluding that “local health officers do not appear to have statutory authority to do what the Order commands,” namely, to carry out the “broad closure of schools.”

Quoting state law, Janel Heinrich, public health director for the county, had argued the law empowered her to “do what is reasonable and necessary for the prevention and suppression of disease,” and that the emergency order under challenge constituted a permissible restriction on public gatherings.

“However, what is reasonable and necessary cannot be read to encompass anything and everything,” the court stated in the Sept. 10 order.

“Such a reading would render every other grant of power in the statute mere surplusage. And a reading that gives carte blanche authority to a local health officer to issue any dictate she wants, without limit, would call into question its compatibility with our constitutional structure.”

The private schools have also gone “to great lengths—and expended non-negligible sums—to provide students, teachers, and staff the ability to resume in-person instruction with safety precautions in place,” the ruling stated.

Dane County corporation counsel Marcia A. MacKenzie, who represented the county in court, didn’t immediately respond to telephone calls from The Epoch Times seeking comment. County Executive Joe Parisi, a Democrat, criticized the decision, saying it comes as the pandemic “hits a new peak in this community.”

The public health department’s order “prioritized the safety and well-being of kids, parents, teachers, and the communities they call home,” Parisi said Sept. 10 in a statement. “Tonight’s order will jeopardize those goals and may lead to more illness and needless human suffering.”

Lawyer Andrew Bath, executive president and general counsel of the Thomas More Society, disagreed.

“The state’s high court stated unequivocally that ‘Overriding the choices of parents and schools, who also undoubtedly care about the health and safety of their teachers and families, intrudes upon the freedoms ordinarily retained by the people under our constitutional design.’ That’s something that none of us can allow to go unchallenged,” Bath said in a statement.

“The court recognized this attempt to shut down private schools for what it is—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,” Kaardal added.