Challenge to school closure order goes before Wisconsin Supreme Court

MADISON, Wis. — Wisconsin Supreme Court justices weighed a decision in a lawsuit challenging local health departments’ ability to close schools during the coronavirus pandemic on Tuesday.

The suit also challenges the impact to religious schools, arguing closures infringe on religious practice.

There have been quite a few lawsuits regarding public health orders in the state. Tuesday’s was a grouping of lawsuits in response to an order from Public Health Madison and Dane County that closed schools and ordered virtual learning at the beginning of the school year.

The court has temporarily blocked the order, but the groups behind the suit want it thrown out. The defense argues the health department was doing what was necessary to combat the pandemic.

Rick Esenberg, the president of the conservative law firm Wisconsin Institute for Law and Liberty, joined two other attorneys in arguing local public health officials can’t order schools to close.

“Local health officials may be as they like to say, the boots on the ground, but in this instance, the boots on the ground need to receive orders from above,” he said, suggesting local departments need approval from the state legislature.

The other attorneys focused primarily on the impact to religious schools, arguing by not attending in person, families’ rights are infringed.

“The religious mission thus depends on in person attendance to be fully realized,” said lawyer Misha Tseytlin.

The attorney for the health department argued religious freedom has its limits.

“The rights of one person to exercise their religion in the public square, just like their rights to swing their arms in the public square, stop at another person’s nose,” said attorney Remzey Bitar.

Justices had a lot to question in response, liberal justices acknowledging the order allows for religious mass. Justice Jill Karofsky doubted the impact virtual school has on kids.

“As the parent of a son in Dane County schools, I’m concerned about the impact you assert in your brief that all these kids are disadvantaged, vis a vis in class,” she said. “Where does that come from?”

Conservative justices asked about the necessity of accommodations for religious schools and question the necessity of the order, which has only been attempted in Dane and Racine counties.

“If what is done in Dane County is reasonable and necessary, why just those two places being closed when the pandemic is statewide?” said Chief Justice Patience Roggensack.

On an otherwise evenly split court, Justice Brian Hagedorn has been the deciding factor in other pandemic cases this year.

He noted the court has erred on the side of religious freedom in the past.

“It’s not a, ‘hmm how do these rights play against each other, what makes the most sense?’” he said to the defense. “You’ve got the deck stacked against you. You’ve got to show that this is the only option we had, and that this is the narrowest way for us to achieve our goals.”

Justices are debating amongst themselves now, and there isn’t a timeline for a ruling.