Throughout the summer of 2020, school districts, private schools and local health departments in Wisconsin were working to determine whether to safely open schools in the fall. Similar to the trends around the country, many public schools opted to stay closed for in-person instruction. In contrast, the vast majority of private schools in Wisconsin planned to open their doors to in-person instruction in the fall. Because of this, Wisconsin public schools saw record declines in enrollment numbers while many private schools saw their best new enrollment numbers in years.
In most cases, the local public health officials were working with school leaders and providing guidance on safe opening practices. In Dane County, Wisconsin, private schools like Abundant Life Christian and High Point Christian school spent the summer consulting with health professionals and Public Health Madison & Dane County on reopening guidance. In addition, schools invested in staff training, safety measures, and plans for students to return safely.
Just as schools were preparing to reopen on Monday, August 24, officials at Public Health Madison & Dane County blindsided the same schools they had spent all summer working with, in addition to the children and families they serve, by issuing a surprise shutdown order after 5 p.m. on Friday August 21—closing all schools to in-person learning for grades 3-12 throughout the entire county.
Order #9 came without warning to all school leaders in Dane County. It included no end date and included metrics that were seemingly impossible to meet. Parents and school leaders were looking at potentially another year of no in-person instruction for students 3-12—critical ages for students to make up for lost instruction time from the previous year.
For families whose students were failing in virtual options or with special needs, their lives were turned upside down. Working parents had to scramble to figure out childcare for their children, as young as nine years old, who were now going to be home fulltime.
At least one Dane County private school had already been open for a week when Order #9 was issued. The result was frustration and chaos for Dane County parents and schools.
Furthermore, there was a real concern that other health departments would follow suit.
For the Wisconsin Institute for Law & Liberty (WILL), their expertise and experience in working in this area of the law is unmatched. As a result, they were able to respond swiftly. By August 26, WILL filed a petition for an original action as well as a motion for a temporary injunction with the Wisconsin Supreme Court on behalf of eight Dane County families, five private schools, School Choice Wisconsin Action and the Wisconsin Council of Religious and Independent Schools (WCRIS). These clients represented at least 4,600 private school students impacted by the public health order. On September 10, 2020, the Court granted the original action petition and issued an injunction which allowed all Dane County schools to reopen as the case was under consideration.
WILL argued that Wisconsin law did not give local health departments the authority to order the closure of all schools for in-person instruction. Additionally, WILL argued the order unconstitutionally infringed upon the constitutional right of parents to direct the education and upbringing of their children, as well as rights to religious liberty.
On June 11, 2021, freedom prevailed. In a 4-3 decision, the Wisconsin Supreme Court made clear that the Madison/Dane County health department lacked the authority to issue an order closing all schools, public and private and had impermissibly burdened the petitioners’ right to the free exercise of religion. The decision should serve as a critical correction that ought to prevent future abuses of power in an emergency.
Rick Esenberg, president of WILL, added:
“This win made it possible for schools to stay open, kids to receive an in-person education and reinforces the understanding that parents can make their own decisions regarding their children’s education. WILL recognizes and advocates that our state and federal constitutions are not inconveniences to be suspended in a time of emergency, but a reminder to those in power that they don’t have limitless power.”
For their successful campaign, WILL is a finalist in State Policy Network’s Bob Williams Awards for Outstanding Policy Achievement, in the Biggest Home State Win category.