MADISON, Wis. (Legal Newsline) – Wisconsin’s highest court won’t keep Dane County kids out of their classrooms while a challenge to one of the county’s health orders continues.
On Sept. 9, the state Supreme Court agreed to hear the challenge of an order that closed all Dane County schools for students in grades 3-12. It also granted a temporary injunction that keeps schools open, with the 4-3 majority deciding that the challenge is likely to succeed.
“Beyond likelihood of success, Petitioners also have shown no legal remedy is available and that failure to grant an injunction would cause irreparable harm,” the decision says.
“Unquestionably, denying students in-person education has the potential to harm the educational institution-Petitioners, as well as the parent-Petitioners and their children.”
Three challenges were consolidated. One of those was brought by the Wisconsin Institute for Law & Liberty on behalf of eight Dane County families, five private schools, School Choice Wisconsin Action and the Wisconsin Council of Religious and Independent Schools.
The August decision to close schools exceeded county officials’ authority, the challenges claim. The county claims it isn’t closing schools, just preventing in-person sessions and that it is authorized by state law to “do what is reasonable and necessary for the prevention and suppression of disease.”
“However, what is reasonable and necessary cannot be read to encompass anything and everything,” the decision says. “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 decision says.
Justice Rebecca Frank Dallet led the dissenting justices in an opinion. She says the majority is interfering with local health officials’ power to make decisions pursuant to their authority and with the local court to decide the issue by taking up the case.
“(T)he majority's impulsive exercise of both our original jurisdiction and equitable authority promotes a type of forum shopping that undermines our legitimacy as a neutral, apolitical arbiter and signals to lower courts that this court does not trust their ability to fairly apply the law,” the dissent says.